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a report on court-related interpreting and translation with recommendationson statute and rule changes, budget items, interpreter training programs andcertification tests, and judicial and professional education programs

Committee to Improve Interpreting & Translation in the Wisconsin CourtsReport to the Director of State Courts ! October 2000

�and justice for all

Improving Interpretation in Wisconsin’s Courts OCTOBER 20001

Table of contents

Committee to Improve Interpreting and Translation in the Wisconsin CourtsReport to Director of State Courts, J. Denis MoranOCTOBER 2000

3 Committee members

5 Executive summary

8 Chapter 1. Nature of the problemrising population with limited English proficiencyneed for qualified court interpreterscurrent statutes and fundingneed for a systematic responsesummary of committee recommendations

16 Chapter 2. Statutory changes recommendedmeet Americans with Disabilities Act requirementscover all types of caseseliminate the indigency requirementcover out-of-court proceedingsinclude crime victims

19 Chapter 3. Changes to the rules of courtrequire certified interpreters whenever availableestablish a court interpreter certification programdevelop a statewide roster of trained interpretersimplement an interpreter code of ethics


23 Chapter 4. Funding & staff neededprovide funding for expanded number of casesset county reimbursement rates at a realistic leveldevelop a court interpreter project

27 Chapter 5. Interpreter certification & trainingorientation workshops & comprehension testscertification tests & reciprocityother roster requirementsrecruiting new interpreterslong-term effect of the training & certification program

31 Chapter 6. Training for judges & others

33 Chapter 7. Other recommendationspublic education & supporttelephone interpretingauxiliary aidsfuture projects

37 Chapter 8. Alternatives consideredimplement parts of the programhire staff interpretersinclude interpreter costs in the circuit court sum sufficient budgetinterpreter training provided by other groupslocal programs and standards

40 Chapter 9. Conclusion

41 Appendix!!!! findings on court interpreter use" language & cost maps# current statutes & case law$ proposed code of ethics% definitions& bibliography


Committee Members

The Committee to Improve Interpreting and Translation in the Wisconsin Courts has been appointed byDirector of State Courts J. Denis Moran to make recommendations for immediate and long-termimprovements in court interpreting and translation practices. The Director asked the committee toidentify priorities for action, recommend statute and court rule changes, propose budgetary items, suggestjudicial and staff education programs, and foster general public and governmental understanding of theissues involved. The committee met 10 times between October 1999 and September 2000. This report,published in October 2000, contains the findings and recommendations from the committee’s first year.

The committee is chaired by Judge Elsa C. Lamelas, Circuit Court of Milwaukee County. Judge RichardBrown, Court of Appeals District II, serves as vice-chair. Committee members are:

Francisco Araiza, State Public Defender OfficeBrenda Bartholomew, Spanish InterpreterVince Biskupic, District Attorney, Outagamie CountyRepresentative Pedro Colon, State Assembly, MilwaukeeJames A. Drummond, Circuit Court Commissioner, Racine CountyJudge Frederic Fleishauer, Circuit Court of Portage CountyDiane Fremgen, Clerk of Circuit Court, Winnebago CountyDebra Gorra, American Sign Language InterpreterRuth Janssen, Clerk of Circuit Court, Outagamie CountyBette Mentz-Powell, Bureau for Deaf and Hard of Hearing, DHFS, MadisonCarolyn Olson, Clerk of Circuit Court, Iowa CountyGail Richardson, District 5 Court Administrator, MadisonJames Seidel, District 9 Court Administrator, WausauPam Vang, Intercultural Relations Coordinator, Appleton Police DepartmentMai Zong Vue, Refugee Services, Department of Workforce DevelopmentJudge Mark Warpinski, Green Bay Municipal Court (now a Brown County Circuit Court judge)Representative Scott Walker, State Assembly, Wauwautosa

The committee was staffed by Marcia Vandercook, Office of Court Operations, with the assistance ofother members of the Director of State Courts Office. The committee was observed and assisted by manyrepresentatives of community groups, interpreter trainers, and interpreting agencies.


For more information about the committee orfor a copy of this report, please contact theOffice of Court Operations, 110 E. Main St.,Suite 410, Madison, WI 53703; phone(608)266-3121; TTY (608)261-8286; [email protected] Thisreport will also be placed on the court’sWebsite at http://www.courts.state.wi.us.


Executive summary

Language is the most basic tool of the courts. Lack of interpreting services prevents parties, victims, andwitnesses from using the courts to meet their obligations and resolve their disputes. Without a skilledinterpreter, a party who speaks or hears no English cannot listen to the testimony, challenge the evidence,or consult with an attorney. A person who cannot communicate with the judge faces a barrier assignificant as a lock on the courthouse door.

The Issue

Growing linguistic diversity. Wisconsin is becoming increasingly diverse and multicultural.Between 1990 and 1999, Wisconsin’s Hispanic and Asian-Pacific Islander populations each grew bymore than 50 percent. Speakers of east European and African languages are also arriving in considerablenumbers, and approximately seven percent of the state’s citizens are deaf or hard of hearing. People whodo not speak, hear, or understand English are appearing more and more often in court as litigants andwitnesses. Their need to communicate with the courts can be met through the use of qualifiedinterpreters, but finding such interpreters is difficult. Interpreter problems are becoming an urgentmanagement issue for many Wisconsin courts, falling into four broad groupings:

! determining the qualifications of interpreter candidates,

" expanding the pool of qualified interpreters,

# improving distribution of interpreters to make them available and affordable, and

$ providing proper oversight of interpreter work in court.

Importance of qualified interpreters. Skillful interpreting is much harder than it looks.Being bilingual is not enough; interpreting also requires specific short-term memory skills that allow theinterpreter to listen, understand, memorize, interpret, and speak all at the same time. Courtroom work is aparticularly difficult kind of interpreting, since it is highly procedural, moves quickly, and employs itsown specialized vocabulary. The results often turn on the nuances of a written document, an exchange ofwords, or a party’s intent. At the same time, testimony often involves street talk and slang in twolanguages, and a great deal of emotion may be conveyed in a few words. Even professional interpreterswho perform well in community settings may be unqualified for the rigors of legal interpreting.

When a court uses an unqualified interpreter or no interpreter at all, the result is denial of access tocourt proceedings. The Wisconsin Supreme Court has said that “the right to an interpreter isfundamentally a right which safeguards the fairness of the process,” holding that interpreters must beappointed for criminal defendants in the interests of fair treatment and effective assistance of counsel.


Fairness is equally important in civil cases such as divorce and property division, child custody andsupport, eviction, debt collection, or loss of a driver’s license. Such cases can have a profound impact onpeople’s lives. When immigrants and deaf persons are forced to proceed with an inadequate interpreter orno interpreter at all, they are left with the impression that the government is indifferent to theirparticipation.

There is also a serious loss of accountability from proceeding with an unqualified interpreter.Communication is poor, testimony is omitted or summarized, the record is incomplete, ethical issues gounnoticed, and unnecessary appeals and dismissals may follow. An incorrect interpretation can makenonsense of an otherwise conscientious court proceeding.

Too often, courts use relatives, friends, police officers, social workers, or even fellow prisoners asinterpreters. These interpreters sometimes serve without inquiry into their training, skills, orunderstanding of their role. In these cases conflict of interest may become a problem. An untrainedinterpreter with personal connections to the party may offer incorrect advice, make unauthorizeddecisions for the party, summarize the proceedings, or soften the testimony so as not to offend the judgeor the party. All of this may occur without the knowledge of the judge or the party.

Wisconsin courts have too few qualified interpreters, interpreters who can accurately, easily, andimpartially convey a legal proceeding from English to another language and back. At the same time,there are too many unqualified interpreters assisting the courts, people who should not be used in court ifthe goals are accuracy, completeness, and impartiality. Some courts are mistakenly content withwhichever interpreter is most easily available—the Spanish teacher from the local high school or a friendor relative of the party. Unfortunately, many of these interpreters are woefully underqualified for the jobin ways that are not apparent to a person who does not speak both languages.

The Solution

Expanding the statute. To improve court access to non-English speakers, the Legislature shouldsignificantly expand the court interpreter statute and provide the funding needed for interpreterappointment. The committee’s proposed statute will:

! provide that interpreters must be appointed when needed for all types of court proceedings, civiland criminal, to increase the integrity and effectiveness of the courts;

" guarantee that interpreters be appointed for all parties, victims, and witnesses while testifying,without requiring that the participant be indigent, as part of a basic right to court access; and

# ensure that no services required by the federal Americans with Disabilities Act and the WisconsinVictim’s Rights Act are denied.

Finally, the overall state appropriation for interpreter services and the reimbursement rate to counties willbe increased so that cost does not discourage judges from appointing qualified interpreters.


Developing a training and testing program. To improve the quality of court interpreters,the Supreme Court and the Director of State Courts should develop court rules and certification standardssimilar to ones successfully used in other states. The court’s program will provide:

! interpreter training programs covering court terminology and procedure, ethics, and interpretingskills;

" certification tests in the most-needed languages, paired with a court rule requiring that judges use acertified interpreter whenever one is available;

# a statewide roster of interpreter agencies and individual interpreter names, telephone numbers,languages, and qualifications, to assist courts in locating and appointing interpreters;

$ a code of ethics for interpreters adopted by court rule, describing the proper role of the interpreterand how to avoid common problems; and

% education for judges, court staff, and attorneys on best practices for appointing and usinginterpreters in court and communicating with persons of limited English proficiency.

For immigrants and persons with disabilities to share the rights and responsibilities of community life,they must have access to the community’s way of handling business, resolving disputes, responding tocrime, and attending to family matters. Access to the courts enhances integration into civic life andstrengthens the fabric of the community as a whole. Court interpreter problems must be approached in asystematic way to address the misunderstandings and injustices caused by language differences. Thecommittee’s recommendations detailed in this report will ensure that language barriers do not underminethe right to full participation in court proceedings in Wisconsin.


Chapter 1. Nature of the problem

Wisconsin is becoming increasingly diverse and multicultural, and people who do not speak English areappearing more and more often in court as litigants and witnesses. The need to locate and superviseinterpreters in these cases is becoming an urgent management issue for many state and municipal courts.Many people attended the meetings of the court interpreters committee to express frustration with thecurrent haphazard approach to hiring and supervising interpreters.

Trial court management problems regarding interpreters fall into four broad groupings:

! determining the qualifications of interpreter candidates," expanding the pool of qualified interpreters,# improving distribution of interpreters to make them available and affordable, and$ providing proper oversight of interpreter work in court.

These interrelated problems are common to courts across the country, and many courts are currentlyworking to improve their interpreter services through better training and funding.

!!!! Rising population with limited English proficiency

This report uses the phrase “limited English proficiency” to mean the inability to adequately understandor communicate effectively in English in a court proceeding. This phrase applies to foreign languagespeakers whose primary language is a language other than English and whose ability to speak English isinadequate for participating in a court proceeding. While many people who have moved here fromanother country can speak some English, a high level of comprehension and expression is needed toparticipate effectively in court.

The population of Wisconsin with limited ability to speak English has risen rapidly over the last 10 years.In 1990, about 263,000 Wisconsin residents (5.8% of those five years and older) said they spoke alanguage other than English at home. When asked to characterize how well they spoke English, 37% ofthe Spanish speakers and 62% of the Asian language speakers said that they did not speak English “verywell.”

Census data on language use is only taken every 10 years, but census data on ethnicity is updated throughyearly estimates. Recent estimates show that people who identified themselves as Hispanic or as Asian-Pacific Islander are a growing segment of the Wisconsin population. The U.S. Census Bureau PopulationEstimates Program estimates that the state’s Hispanic population rose 50.5%, to 140,235, between July 1,1990 and July 1, 1999. It estimates that the Asian-Pacific Islander population grew 53.6%, to 83,265.


These two groups grew far faster than the overall Wisconsin population, which increased only 7.3%during this period, to 5,250,446. The Census Bureau projects similarly rapid rates of growth for these twogroups in Wisconsin for the next 25 years.

Speakers of east European and African languages are also arriving in considerable numbers. The Officeof Refugee Services (part of the Division of Economic Support, Department of Workforce Development)keeps track of refugee migration to Wisconsin. In addition to refugees from Southeast Asia, it tracksseveral thousand refugees from the former Soviet Union, the former Yugoslavia (Bosnia, Serbia, andCroatia), Africa, and other places. (See Appendix 2, language distribution maps, for more information.)The languages needed in the Wisconsin courts vary from year to year depending on political andeconomic conditions in other parts of the world, but the overall number of people needing interpreters canbe expected to increase every year for the foreseeable future.

Not all persons with limited English proficiency come from other countries. For purposes of this report,this term also applies to persons who are unable to hear or speak English because of hearing loss,deafness, speech impairment, or other disability. Many deaf people use American Sign Language (ASL)as their primary means of communication, although many can also read and write English. AmericanSign Language is a different language from English, with its own grammar and syntax, and there are alsomany other types of sign language in use. Although there are no firm figures for the number of deafpeople in Wisconsin, the prevalence of deafness in the United States is estimated at 1% of the population.

Hard of hearing persons are also included as “limited English proficiency” for purposes of this report.Hard of hearing persons are those with sufficient hearing loss that they need interpreters, assistivelistening devices, transcripts, hand-written notes, or some other means of communication to take in whatis happening in court. Many hard of hearing persons have lost some or all of their hearing as adults andmay have English as their first or only language, but their need for communication access is the same.Estimates of the prevalence of hard of hearing persons in the U.S. population run from 6.6% to 10%.

Wisconsin’s limited English proficiency population is not evenly distributed throughout the state.Spanish speakers have tended to settle along the eastern edge of the state from Outagamie and Browncounties in the north to Walworth and Kenosha counties in the south, with some additional populationsnear La Crosse. Hmong immigrants live along the eastern edge, from Outagamie and Brown counties inthe north to Milwaukee in the south. Significant Hmong population centers are also found in Marathonand Portage counties and in La Crosse and Eau Claire. There is no population count of deaf residents bycounty, but there are known to be high deaf populations in Kenosha, Racine and Walworth counties. Asmight be expected, Milwaukee has the highest number of Spanish speakers, Hmong speakers, andrefugees, and presumably deaf persons as well. (See Appendix 2, language distribution maps).

Because persons with limited English proficiency are spread unevenly across the state, the need for courtinterpreters is spread unevenly as well. Milwaukee County has a large enough Spanish- speakingpopulation that the county has hired a full-time Spanish interpreter to work for the court. Many courts useinterpreters almost on a daily basis and spend thousands of dollars every year on court interpreting. Someregions need interpreters only in the summer, when foreign visitors and migrant farm workers come to thestate. On the other hand, many counties (primarily in the north and the southwest) have not hired an


interpreter in years, either because no limited English proficiency person has come to court or because theneed for an interpreter went unrecognized. Not surprisingly, then, some judges and clerks of court see theneed for more and better court interpreters as a vital issue, while others see no issue at all. Nonetheless,the need for an interpreter can arise at any time and, depending on the length of the proceeding and therarity of the language required, can be a very expensive proposition for any county in the state.

"""" Need for qualified court interpreters

Wisconsin courts have too few qualified interpreters, interpreters who can accurately, easily, andimpartially convey a legal proceeding from English to another language and back. Court staff often makemany phone advance calls to find an experienced interpreter, or scramble to find anyone at all to interpretat the last minute. In rural areas, paid interpreters must often be brought in from a considerable distance.By insisting on a well-qualified interpreter, the court takes on a considerable burden to locate the rightperson or to postpone the case until the right person is available. The court also agrees to pay theinterpreter’s hourly rate and to pay time and/or mileage when the interpreter lives far away.

At the same time, the state has too many unqualified interpreters, people who really should not be used incourt if the goals are accuracy, completeness, and impartiality. Some courts are mistakenly content withwhichever interpreter is most easily available. This may be the Spanish teacher from the local highschool, a friend or relative of the party, or a local resident who interprets once or twice a year just to helpout. Unfortunately, many of these interpreters are woefully underqualified for the job, in ways that arenot apparent to a person who does not speak both languages required. While a judge may be able togauge if an interpreter has a professional demeanor or seems to understand the legal process, amonolingual judge has no way to know whether the substance of the court proceeding is being accuratelyor completely conveyed.

Recognizing when an interpreter is needed. There is misunderstanding of how languageaffects court proceedings. Many judges and clerks of court assess a party’s language abilities by askingsimple yes/no questions, or by asking if the person uses English at work or in social settings. Thesetechniques seriously underestimate the level of language skill needed to cope in court. Basicconversational skills are not enough to intelligently waive the right to counsel, to understand theimplications of a guilty plea, or to undergo cross-examination. In addition, the person may come from acountry that has no such thing as “rights,” or may speak a language where answering a question “yes”means only “yes, I acknowledge your question.” Without a trained interpreter to convey the legalconcepts at issue, and to pass on the accurate meaning of any response, there is potential for serioussubstantive misunderstanding.

Skills needed for court interpreting. There is widespread misunderstanding of the difficulty ofcourt interpreting. Being bilingual is just a foundational requirement, interpreting also requires a set ofvery specific short-term memory skills that allow the interpreter to listen, understand, memorize,interpret, and speak all at the same time. Court interpreting also requires understanding of legalterminology and procedure, knowledge of the speaker’s cultural context, ability to preserve the languagelevel and intent of the speaker, and understanding of the ethical obligation not to shade or abbreviatetestimony. This is a highly specialized skill, and cannot be done properly without training.


Why is legalinterpreting sochallenging?

Courtroom work is a particularlydifficult kind of interpreting. It is highlyprocedural, it moves quickly, and itemploys its own dense specializedvocabulary, along with Latin phrasesand the government acronyms. Theresults often turn on the nuances of awritten document, an exchange ofwords, or a party’s intent. At the sametime, testimony often involves streettalk and slang in two languages, and agreat deal of emotion may beconveyed in a few words. Evenprofessional interpreters who performwell in community settings may beunqualified for the rigors of legalinterpreting.

It is a common misconception that anyone proficient in twolanguages can interpret. In fact, interpreting requires acomplex set of skills, all of which must be exercisedsimultaneously. The interpreter must listen, understand,store words and word order, search for the right concepts andwords in the second language, reconstruct the message in thesecond language, and speak and monitor his or her ownoutput, all while listening for the next chunk of dialogue toprocess. Professional interpreters practice memory skills tobreak messages into chunks, and use special techniques forremembering names and the order of events. Numbers, suchas addresses, are particularly prone to error.

There are several consequences of using underqualified

interpreters or failing to use interpreters where needed.

' First and foremost is the denial of access to courtproceedings for litigants of limited English proficiency. InState v. Neave, 117 Wis. 2d 359, 373, 344 NW 2d 181(1984), the Wisconsin Supreme Court said that “the right toan interpreter is fundamentally a right which safeguards thefairness of the process.” It held that interpreters must be

appointed for criminal defendants as a matter of judicial administration, to remove the defendant’sfeeling of having been dealt with unfairly and to remove any doubt about the effectiveness of thedefendant’s right to counsel and right to confrontation (State v. Neave, at 365). Fairness and accessconsiderations are equally applicable in civil cases, which also affect important aspects of people’slives. There is obvious injustice to a system that allows parties to go through divorce and propertydivision, child custody and support, eviction, debt collection, or loss of a driver’s license withoutunderstanding what is happening. Lack of interpreting services prevents limited English proficiencypersons from using the courts to meet their obligations and resolve their disputes. It also discouragesvictims, witnesses, and parents from coming to court.

' There is a serious loss of accountability when courts use unqualified interpreters or nointerpreters at all. Communication is poor, testimony is omitted or summarized, the record isincomplete, and ethical issues go unnoticed. An incorrect interpretation can make nonsense of anotherwise conscientious court proceeding. There is no value to a court reporter’s verbatim transcriptif it contains an erroneous account of the words of the non-English speaking person. It is alsoineffective to work through a nonprofessional interpreter, who may interpret slowly orincompletely, need things repeated, or allow misunderstandings to continue until the line ofquestioning needs to be started over. Unnecessary appeals and dismissals may follow. Oftenmisunderstandings are never recognized or resolved.


What does theWisconsin statute say?

Wis. Stat. §885.37 sets the limiting criteria for courtappointment at public expense:

' Interpreters are required for persons who have alanguage difficulty because of the inability to speak orunderstand English, or who have a hearing orspeech impairment, sufficient to prevent the personfrom consulting with an attorney, reasonablyunderstanding the testimony, or reasonably beingunderstood in English.

' Interpreters are required in four types of cases:criminal, children in need of protective services(CHIPS) under chapter 48, juvenile offenses underchapter 938, and mental commitments underchapters 51 and 55. In other types of cases,interpreters may be appointed in the discretion ofthe court, but civil appointments are infrequent.

' Interpreters are appointed for four types ofparticipants: parties, witnesses, and children andparents in CHIPS actions and juvenile offenses.

' Interpreters are appointed at public expense onlywhen the court finds that the party, witness, childor parent is indigent.

Wis. Stat. §885.37 also provides that agencies shallpay for interpreters at administrative hearings, that theState Public Defender shall pay for an interpreter inpreparing for court proceedings, and that municipalcourts shall be subject to the same requirements ascircuit courts. (The full text of §885.37 is found inAppendix 3, current statutes and case law).

' Too often, courts use relatives, friends, police officers, social workers, or even fellow prisoners asinterpreters. These interpreters usually serve without inquiry into their training, their accuracy, ortheir understanding of their role. Conflict of interest is a particular problem in these instances.An untrained interpreter with connections to the party may offer incorrect advice, make unauthorizeddecisions for the party, summarize the testimony, or soften the testimony so as not to offend the judgeor the party. All this may occur without the knowledge of the judge or the parties.

#### Current statutes & funding

Wisconsin law. The appointment oflanguage interpreters in court is governed byWis. Stat. §885.37, which sets the criteria forcourt appointment of an interpreter at publicexpense. This statute was substantiallyrevised in 1987 in response to State v. Neave,which held that an interpreter will be providedat court expense if a criminal defendant cannotafford one. Following this case, theLegislature specified that the court mustprovide an interpreter for indigent parties andwitnesses in criminal, juvenile, mental health,and child protection cases.

While the current statute gives the court thediscretion to appoint an interpreter in othercases, this power is rarely used in civil cases.Interpreters are seldom appointed for divorces,domestic violence, restraining orders,paternity, evictions, debt collections, trafficcitations, and a host of other common legalproblems. The statute does not provide aninterpreter for the many litigants who do notmeet indigency criteria but who cannot affordan interpreter. It also does not provide aninterpreter for crime victims other than in theircapacity as witnesses, seriously underminingtheir protections under the victims’ rights act.

Americans with Disabilities Act. Wis.Stat. §885.37 is intended to apply to courtappointment of both foreign languageinterpreters and interpreters who provideservices for deaf, deaf-blind, hard of hearing,and speech-impaired court users. However,


Wis. Stat. §885.37 was passed prior to the Americans with Disabilities Act (ADA), 42 USC § 12101 etseq. (1990). Title II of the ADA provides that state and local governments must make their services,programs and activities readily accessible to and useable by people with disabilities. The ADA does notapply to foreign language speakers unless they are disabled.

The state statute does not conform to the ADA with respect to court interpreter services, a situation thatcauses confusion about the extent of the court’s obligations. The ADA requires accommodation ofdisabled parties and witnesses in all types of cases, civil or criminal, regardless of indigency. The ADAalso requires interpreters or other accommodations for jurors. Accommodation may take the form ofinterpreters, assistive listening devices, transcripts, or other means of assisting communication. For anextensive report on ADA issues in the Wisconsin courts, see Access, Report of the Wisconsin SupremeCourt Interdisciplinary Committee on the Court-Related Needs of the Elderly and People WithDisabilities (1994).

Rate of reimbursement. The cost of court-ordered interpreter services in Wisconsin circuit courts ispaid by the individual counties. When the county provides interpreter services under the terms of Wis.Stat. §885.37, the costs are partly reimbursable by the state. Wis. Stat. §814.67 provides that the fee forinterpreters in circuit court shall be $35.00 per half day, plus mileage. This amount is reimbursed to thecounties from a separate appropriation in the circuit court sum certain budget under §20.625(1)(c); in1999-2001, the annual appropriation was $188,800. The Director’s office reimburses counties up to theamount of this appropriation; usually the money runs short in the spring and the Director’s office holdsreimbursement requests for several months to pay from the next year’s appropriation. Wis. Stat. §814.67provides that the fee for interpreters shall be $10.00 per half day in municipal court, but there is no statereimbursement.

Individual counties are responsible for interpreter fees not covered by the statute. Thus, the counties areresponsible for the full cost of interpreter services whenever the court appoints an interpreter for anonindigent party. The counties are also responsible for any amount paid in excess of $35.00 per halfday. This rate was set in 1987 and does not reflect what counties must actually pay to get an interpreter towork for the court. As a result, counties currently pay about two-thirds of the cost of providing interpreterservices.

Reported 1999 costs. Using a recent survey of the clerks of court, the committee calculated thatcircuit courts pay an average of $39.70 per hour for Spanish interpreters and $39.80 per hour for signlanguage interpreters. Rates can go as high as $150.00 per hour for specialty languages, but this is rare.(See Appendix 1, committee findings on court interpreter use) For municipal courts, the statute says therate shall be $10.00 per half day, but in fact municipalities must pay the same market rate as the circuitcourts and are not provided with any reimbursement at all.

The amount the clerks of circuit court reported for 1999 interpreter billings and staff interpreters was$565,248, three times the amount available for reimbursement. These reported expenditures were forpaid interpreters only and do not reflect the use of family members and agency staff as ad hocinterpreters. In Milwaukee County, the court employs a full time Spanish interpreter at a cost of $48,000per year, and contracts for most of its sign language services through another county agency at a cost of


$32,000 per year, and spends an additional $109,000 on contract interpreter services. The reported costsfor Milwaukee alone are as much as the current annual appropriation for the entire state.

$$$$ Need for a systematic response

Across the country, state supreme courts and court administrators are grappling with the need to improveinterpreter services. Some are responding to recommendations made by task forces addressing race andethnic bias and disability access. Others are responding to the increased demand caused by rising limitedEnglish proficiency populations on day-to-day court operations.

Because all states are facing this problem in varying degrees, the National Center for State Courts(NCSC) and a consortium of states are working collaboratively on the development of certification testsand procedures for assessing and improving the language skills of court interpreters. Twenty-four states.including Wisconsin, have joined the NCSC consortium as of fall 2000. These states share trainingmaterials and a bank of interpreter tests in 10 languages. Several larger states, including Texas, NewYork, and California, have independently developed interpreter certification programs and tests. Thefederal courts have had a centralized system of testing, supervision, and payment since 1978.

This problem is not unique to the courts. The medical profession is also addressing the need to haveinterpreters on call who are skilled in the dynamics of doctor-patient communication and who understandmedical terminology and procedure. A group of Dane County hospitals and health agencies has hired afull-time coordinator to develop an interpreter screening, training, and scheduling program. The programoffers a test involving interpretation of a medical interview, translation of written discharge instructions,and an oral ethical question. All interpreters must take and pass this test within six months of beginningwork at these hospitals. This program has improved patient service, reduced mistakes and enhanced staffefficiency. Without a similar program for the courts, however, nothing prevents the interpreters who failthe hospital test from interpreting for the courts instead.

Demand continues to increase in every state, but the quantity and quality of court interpreters has notautomatically risen with demand. In states without interpreter programs, courts continue to useinterpreters of undemonstrated skills and professional standards. Quality does not improve by itself;some authority needs to recognize the issue and take on the responsibility to oversee interpreter trainingand evaluation. In most states it is the state supreme court, through its superintending and administrativeauthority, that takes the lead on this issue, in order to provide access to justice and assure accountabilityfor the courts statewide. The courts enter into this venture in partnership with the legislatures, sinceinterpreter services, training, and certification, require a substantial commitment in terms of funding.

In identifying trends for the coming decade, the National Association of Court Managers has highlightedchanging demographics as one of the most important issues to be faced by courts. These changes presentan opportunity for the courts to develop a working relationship with new groups of constituents, adapt tothe needs of the community, build support for existing court programs, and emphasize the rights andresponsibilities of citizenship. Providing courtroom access for limited English proficiency persons buildstrust in the system; failure to do so breeds mistrust of the government at large and the courts in particular.


Federal law has made clear that persons with disabilities are entitled to equal access to governmentprograms and facilities, in order to enjoy the full benefits and responsibilities of civic life. In particular,deaf and hard of hearing persons are to be provided with the accommodations needed to communicatefully in the courtroom. The committee believes that the logic behind this right to access is equallyapplicable to limited English proficiency parties and witnesses, in both civil and criminal cases. The rightto full participation in court proceedings should be the law in Wisconsin.

%%%% Summary of committee recommendations

The committee proposes that the current court interpreter statute be significantly expanded. The statuteshould provide that interpreters will be appointed for all types of court proceedings, civil and criminal, toincrease the integrity and efficiency of the courts. Interpreters should be appointed for all parties, victims,and witnesses while testifying, as part of a basic right to court access, without requiring that theparticipant be indigent. The statute should be clarified to be sure that no service required by the federalAmericans with Disabilities Act or Wisconsin Victim’s Right Act is denied. The overall appropriationfor interpreter services and the reimbursement rate to counties should be greatly increased, so that there isno financial disincentive to appoint qualified interpreters.

The committee also proposes a program to improve the quality of the court interpreters available. Thisprogram follows a model developed by the National Center for State Courts and successfullyimplemented in other states. The program has five components, which this report will describe in detail:

! interpreter training programs covering court terminology and procedure, ethics, and interpreting skills;" certification tests in the most-needed languages, paired with a requirement that judges use a certified

interpreter whenever one is available;# a statewide interpreter roster of interpreter agencies and individual interpreter names, phone numbers,

languages, and qualifications, to assist courts in locating and appointing interpreters;$ a code of ethics for interpreters to provide guidance on the proper role of the interpreter and avoidance

of common problems; and% education for judges, court staff, and attorneys on best practices for appointing and using interpreters

in court and communicating with non-English speakers.

The committee has not yet addressed the steps needed to improve interpreter services in the municipalcourts. The program recommended here will greatly improve the pool of interpreters available to allcourts and law-related agencies. The committee also proposes to provide training and materials formunicipal courts through the court’s judicial education program. However, the committee did not havetime in its first year to study municipal courts specifically or to consult with municipal court judges andclerks on possible solutions. Because municipal courts are entirely funded by the municipalities, thecommittee also has not attempted to suggest any budget proposal. The committee intends to work moreclosely with municipal courts in its second year and to make further recommendations later. Similarly,the committee did not attempt to address the standards and procedures that might be appropriate for themany law-related hearings that take place in administrative agencies. The committee expects to considerthis issue in consultation with executive branch agencies in the future.


Why must court interpreters be so skilled?

Court interpreters must have enough fluency to convey themeaning, tone, and formality of a wide range of expressions.The court interpreter must be comfortable in a range ofcommunications from legalese to profanity.

Excerpt from an insurance contract:' Incontestability: This policy shall be incontestable except

for nonpayment of premiums, after two years from itsdate of issue. New statements made by any personinsured under this policy relating to his insurability shallbe used in contesting the validity of the insurance withrespect to which such statement was made after suchinsurance has been in force prior to the contest for periodof two years during such person’s lifetime nor unless it iscontained in a written instrument signed by him.(Recently posted as “brain twister of the month” on thewebsite of the National Association of JudiciaryInterpreters and Translators)

Excerpt from a trial transcript:' “The third time he goes up to him, he gives him the

finger. I mean, this is not somebody who’s trying toremain cool. What he did, he gets into the fray, right inthe guy’s face, nose to nose with him, and says “You’re apunk, motherf____!”

Chapter 2. Statutory changes recommended

The committee recommends significant expansion of the right to a court-appointed interpreter under Wis.Stats. §885.37. A qualified interpreter should be appointed for a broad range of cases and parties:

!!!! Meet Americans with Disabilities Act requirements

The federal Americans with Disabilities Act requires that sign language interpreters, and other types ofaccommodations will be provided at court expense whenever they are needed by parties, witnesses,jurors, and other court users with disabilities that limit their ability to communicate with the court. Theserequirements apply in all types ofcases, civil and criminal. The courtmust pay for the interpreter regardlessof whether the court user is indigent.Although the Americans withDisabilities Act and its accompanyingregulations require these services now,the contrary language of the statestatute causes frequentmisunderstanding about theirnecessity under the law. The statutemust be clarified so that no judge orcourt clerk is exposed to liabilityunder the Americans with DisabilitiesAct for inadvertent failure to comply,and so that no court user is mistakenlydenied services.

"""" Cover all types ofcases

The statute should authorize the courtto appoint foreign languageinterpreters in all cases, including civiland family, and allow the county to bereimbursed for those services. Civilcases impact significant economic andfamily interests and deserve the same


level of accessibility and accuracy. Family and paternity cases are very complex, requiring parties tonegotiate property settlements and shared custody arrangements, and to comply with child support andrestraining orders. Domestic violence restraining orders have serious safety implications and cannot beeffectively enforced unless the victim is able to express the need for the order and unless the personrestrained clearly understands the restrictions. Many civil cases have criminal implications if a party failsto understand and comply with a court order. Traffic cases form many people’s first impression of thecourt system, and sometimes lead to loss of livelihood when a person’s license is revoked. Finally, agrowing number of parties are representing themselves in court; if they also appear without an interpreter,the misunderstandings and frustrations can be exponential. Although judges currently have the statutoryauthority to appoint interpreters for indigent parties and witnesses in civil cases, most courts do so onlyinfrequently.

#### Eliminate the indigency requirement

The statute should authorize judges to appoint foreign language interpreters and allow counties to bereimbursed whether or not the party, witness, or parent is indigent. Interpreters are crucial to the integrityof court proceedings, and are necessary to assure that what happens in court in English is what alsohappens in another language. When parties are forced to provide their own interpreters, they most oftenbring their children, other relatives, or community leaders and advocates. It is unlikely that theseassistants have adequate interpreting skills and understanding of legal proceedings, while their potentialfor conflicts of interest is high.

Many Wisconsin residents, especially ones with limited English skills, live from paycheck to paycheck.Because the standards for indigency are set very low, many parties who are not technically indigent arestill unable to afford the services of an interpreter in addition to all other costs. If parties are required topay for a neutral paid interpreter, it becomes a cost that applies only to people of limited Englishproficiency. Equal access in communication is demanded by the Americans with Disabilities Act, inorder that disabled persons may fully participate in court proceedings and obtain their rights thereby.There is no justifiable reason to deny equivalent access to speakers of foreign languages.

Even if a party can afford to hire a paid interpreter, allowing a financial relationship between interpreterand client undermines the neutrality needed by the court; the interpreter should report only to the judge.The committee considered but firmly rejected including a statute that would allow the court to assess theinterpreter’s fee as a court cost against a nonindigent party. Such a clause would undermine the basicpremise of the statutory changes and would put pressure back on judges to cut costs at the expense ofequal access to the courts. Interpreters should be provided as part of the basic package of court services,like the court reporter and the bailiff. The purpose of the interpreter is to ensure the accountability andfairness of the court proceedings, and that is a fundamental cost of government services to be borne by all.

$$$$ Cover out-of-court proceedings

Judges should be authorized to appoint interpreters, and counties should be reimbursed, for certain out-of-court proceedings ordered by the court. These include court-ordered psychological exams, mediation, and


court-ordered pretrial and settlement conferences held adjacent to the courtroom. These proceedings areheld for the benefit of the court and involve the same considerations. Interpreter services used by theclerks of circuit court at the counter will also be covered. These provisions would not shift theresponsibility for providing interpreters for attorney-client interviews, child support reconciliations,presentence report investigations, and other administrative proceedings. Although these are sometimesordered by the court, they should remain the responsibility of the administrative agencies as they are now,under their own obligations to provide access and communicate with clients.

%%%% Include crime victims

The Victims’ Rights Act, ch. 950 of the Wisconsin statutes, provides comprehensive protection for therights of crime victims, witnesses, and parents of minor victims. These protections include the right toattend court proceedings, to make statements at sentencing or disposition, and to provide information tothe court on the effect of the crime on the victim. These rights cannot be exercised effectively by aperson of limited English proficiency without the assistance of an interpreter. The ability to report andprosecute domestic violence in immigrant communities is an issue of particular concern for many districtattorneys and domestic violence advocates. Wis. Stat. §885.37 should be revised to provide court-appointed interpreters for victims, to make the protections of the Victims’ Rights Act available to all.


Chapter 3. Changes to the rules of court

The committee recommends that the Wisconsin Supreme Court make four primary changes to the rules ofcourt:

!!!! Require certified interpreters whenever available

The committee will draft and recommend to the Supreme Court a rule governing the procedures for trialcourts to follow when providing a court interpreter. The rule will start with the presumption that the courtwill use a certified interpreter if one is available in the language needed. This assures that the interpreterwill have the language skills, legal knowledge, and understanding of the code of ethics necessary toprovide adequate services to the court and to protect the rights of the limited English proficiency person.

The court rules will require judges to make diligent efforts to find a certified interpreter and summarizethose efforts for the record. If a certified interpreter is unavailable, the court may appoint a noncertifiedinterpreter from the court’s roster, after considering the seriousness of the case, the nature of theproceeding, and the need for timeliness. If a noncertified interpreter is used, the court will be required toreview that interpreter’s qualifications on the record and to state why the interpreter is found to bequalified. The court will first refer to the court’s roster for certified and uncertified interpreters, and willonly use an interpreter from off the roster if there is no alternative and if the court finds that the person isqualified. If no certification exam is offered by the Director’s office in the required language, or nointerpreter has passed that exam, then it is presumed that no certified interpreter is available for thepurposes of this rule.

In practice, this system of presumptions requires a court to use a certified interpreter rather than anoncertified interpreter any time one is available. If no certified interpreter is available, the court mustevaluate the totality of the circumstances, including the gravity of the proceedings and the potentialpenalty or consequence, to determine if a noncertified interpreter may be used. For serious substantiveproceedings, where a person’s liberty or property interests will be affected by judicial action or wheresignificant constitutional rights are compromised, it should be an unusual situation where the court relieson the services of a noncertified interpreter. The court must also determine whether it would be moreappropriate to use a certified interpreter by telephone. The rule will be structured to require the use of themost qualified interpreter available.


"""" Establish a court interpreter certification program

The committee recommends that the Director of State Courts establish a program to test and certifylanguage interpreters, using standardized tests developed by the National Center for State Courts for thispurpose. The certification exam tests knowledge of English and the target language, ability to interpretaccurately and completely between the two languages, and ability to convey legal concepts. In theconsortium foreign language exams, interpreters are tested in three modes: consecutive interpretation(question and answer), simultaneous (continuous, while proceedings are ongoing), and sight (oralinterpretation of a written document). Tests are graded using scoring units such as numbers and names,idioms, legal terms, changes in tone and formality, and descriptions. The tests are administered viaaudiotape by in-state proctors, then sent to an experienced team of raters to be graded off-site. Thepassing grade in most states is set at 70%. This passing level is needed to assure competence, but manypersons now working as interpreters do not come even close to this score, underlining the need to improveservices.

Certification will be noted on the state roster. Certified interpreters must be called first to see if they areavailable, and will be paid more per hour when they work. Because of the costs involved in administeringthe exam, Wisconsin at first will offer the certification test only in Spanish and Hmong. Foreign languageinterpreters will be granted reciprocity by the Director’s office if they are certified by another state courtbelonging to the NCSC Consortium or by the federal courts. Sign language interpreters must present thelegal certification offered by the National Registry of Interpreters for the Deaf. In addition, certifiedinterpreters will be required to attend the Wisconsin orientation workshop, pass a written comprehensiontest, and sign an affidavit agreeing to abide by the interpreter code of ethics.

Why is legal certification important?In a recent criminal case, the police asked a local sign language interpreter to interpret a Mirandawarning to a suspect. The interpreter had a basic sign language certification but not a legalcertification. The police videotaped the warning and the interpretation, so the trial court was able toreview it later.

Expert witnesses testified that for the concept “rights,” the interpreter used the sign for “all right” or“okay,” and the defendant’s responses showed he understood the sign as “all right” or “okay.”“Decide for yourself” and “the choice is yours” were rendered by the interpreter as "decide itself,"which did not convey that the recipient of the message is to take an action or has a choice. Theinterpreter interpreted the defendant’s nodding of his head to mean "yes," but in American SignLanguage a head nod, by itself, may mean "I understand," "I'm waiting for clarification" or "goahead," and does not necessarily mean "yes."

At no time, one expert testified, did the defendant express that he understood his rights. Anotherexpert characterized the communication between defendant and interpreter as "disconnected."Under these circumstances, both the trial court and the appeals court concluded that the defendant’swaiver of the right to counsel was not knowing and intelligent. State v. Hindsley, 2000 Wi.App. 130,¶14-15, 614 N.W. 2d 48 (2000).


What kinds of problems are caused byunqualified interpreters?

The committee heard of many problems caused by incompetentor unethical interpreters, including the following:

• An interpreter who confused “hat” and “gloves” untilcorrected by a bystander in the audience.

• A defendant who spent three years in jail awaiting trialbecause of problems in interpretation.

• An interpreter who softened a defendant’s testimony in away that probably led the jury to convict the defendant ofreckless rather than intentional homicide.

• A district attorney who asked an interpreter to read a pleaagreement to a pro se defendant, explain it to him, and askhim to sign it.

• A judge who asked a woman to interpret for her husbandduring their divorce trial.

• An interpreter who asked the limited English proficiencyparty to pay for his services even though the interpreter wasalready being paid by the court.

• A defendant who victimized speakers of various Asianlanguages, but who faced trial only on those counts wherean interpreter could be found for the victim’s language.

• Judges who used the arresting officer or another prisoner asan interpreter.

• Children who were asked to interpret for their parents,including cases where sexual matters were discussed.

#### Develop astatewide roster oftrained interpreters

The Director’s office should alsoestablish a program for trainingand screening noncertifiedinterpreters to be used whencertified interpreters are notavailable. The Director’s officeshould maintain and publish astatewide roster of certified andnoncertified interpreters who havebeen screened to work in thecourts. Inclusion on the roster as anoncertified interpreter indicatesthat an individual has met certainminimum requirements, but doesnot guarantee the level ofproficiency demonstrated by acertified court interpreter. Ifneither a certified nor annoncertified interpreter isavailable, the appointing authoritymay appoint a person not listed onthe roster. This may include aninterpreter who does not normallyinterpret in the courts but who isneeded for a rare language.

To be included on the court interpreter roster as a noncertified interpreter, an interpreter must attend theWisconsin orientation workshop, pass a written comprehension test, submit to a background check, andsign an affidavit agreeing to abide by the interpreter code of ethics. There is no language proficiency testfor noncertified foreign language interpreters. Interpreters working with deaf, deaf/blind, or hard ofhearing individuals must hold a generalist certificate demonstrating a minimum level of languagecompetence to be included on the roster.

When an interpreter from the roster is unavailable, the court must determine if it is appropriate to proceedwith an interpreter not on the roster or without an interpreter at all. The committee will recommend thatthe court rules guide the judge in this situation by requiring that the court evaluate the totality of thecircumstances, including the gravity of the judicial proceeding and the potential penalty or consequenceinvolved. The court shall consider whether it would be appropriate to use a certified interpreter bytelephone, based on guidelines from the Director’s office. To determine if the particular interpreter not on


What happens when interpreters have a conflict of interest?

Social service providers serving limited English proficiency clients face a difficult set of ethicaldilemmas. Clients go to these agencies seeking assistance from someone of their own ethniccommunity in solving a range of problems, some of which are legal in nature. These bilingual socialworkers first advise the client, then accompany the client to an administrative proceeding or courthearing. Frequently, the hearing officer or judge asks the social service provider to act as aninterpreter, and the social worker agrees to do so. Although the social worker may know that in herrole as an interpreter she should stay neutral and not offer advice to the client, in her role as socialworker she often offers the client advice. The blurring of the two roles creates ethical dilemmas forsocial workers. The agency may or may not be paid for providing interpreting services in thismanner.

the roster is qualified to interpret for the proceeding in question, the court shall interview the proposedinterpreter and make a finding that the individual appears to have language skills, knowledge ofinterpreting techniques, and familiarity with interpreting in court or administrative proceedings sufficientfor the proceeding at hand. Again, interpreters working with deaf, deaf/blind, or hard of hearingindividuals, an interpreter must at a minimum hold one of the generalist certificates.

$$$$ Implement an interpreter code of ethics

The committee submits to the Supreme court a code of ethics for court interpreters (See attachedAppendix 4). Interpreters, judges, and attorneys are often unaware of the proper role of the courtinterpreter and the professional responsibilities it demands. The purpose of the code of ethics is toarticulate a core set of principles to guide the conduct of a court interpreter and to educate judges in thelevel of conduct to be expected. The code addresses accuracy and completeness, representation ofinterpreter qualifications, impartiality and conflict of interest, professional demeanor, confidentiality andrestriction of public comment, limitations on giving legal and other advice, communicating interpreterlimitations to the judge, reporting ethical violations, and professional skills development.

The code of ethics will serve as a basis for education and training and may also serve as the basis fordisciplinary actions. Interpreters who appear on the state roster will be required to attend training andpass an examination on the principles of the code of ethics, and will agree to submit to discipline for anyviolation. Disciplinary action may include a period of suspension from service to the court ordecertification and removal from the roster.


Chapter 4. Funding and staff needed

The committee proposes that the major costs of interpreter services be shifted from the counties to thestate. Following the model recommended by the National Center for State Courts, other states havemoved from planning and paying for interpreter services at the county level to statewide programs andbudgets. Minnesota is making this transition now, and at least seven other states have already done so.They shift to state funding for several reasons: to meet the supreme court’s statewide responsibility toprovide equal access to the courts, to equalize costs and services across the state, to remove any economicdisincentive to use interpreters where needed, and to avoid the sense that interpreter use is just anotherunfunded state mandate imposed by a centralized system that doesn’t understand local problems.

The committee recommends three funding changes: 1) appropriating enough money to include civil cases,nonindigent parties, and increased use of certified interpreters under existing §885.37; 2) raising the rateof reimbursement to the counties under existing §814.67 to a realistic amount per hour; and 3) providingprogram funding and one project position to develop and implement a statewide program for training andtesting court interpreters. Based on the committee’s plan, the Wisconsin Supreme Court has submitted arequest for additional funds for increased interpreter reimbursement to the counties, totaling $590,000 forbudget year 2001-02 and $1,220,000 for budget year 2002-03. The budget request also includes fundingfor the training and testing program and staff, totaling $97,800 for 2001-02 and $100,800 for 2002-03.The total request for the first biennium is $2,008,600.

!!!! Provide funding for expanded number of cases

Under the committee’s proposal, the demand for certified interpreters is expected to increase graduallyover the biennium for three reasons: (1) statutory changes will increase the number of cases whereinterpreters are appointed; (2) judicial and attorney training will raise awareness and demand; and (3) thestate’s foreign-language population will go on increasing even if the Supreme Court and the Legislaturedo nothing at all. The committee’s projected costs are based on the following assumptions:

' Wisconsin’s 72 counties currently spent an estimated $568,646 in 1999 on freelance billings and staffinterpreters for court proceedings. Current billings appear to reflect an average market rate ofapproximately $40.00 per hour. The state currently appropriates $188,800 annually to reimburse thecounties for these expenses. (See Appendix 1, describing the information used to arrive at theestimated county cost.)

' Expanding the statute to cover all case types will approximately double the number of cases coveredonce the statutory change becomes effective. In 1999, there were 173,780 filings in the categoriescurrently covered by statute, primarily criminal and juvenile cases. The civil cases proposed to beincluded are mostly general civil, family, paternity, small claims, and probate, of which 133,167 cases


were filed in 1999. Contested traffic cases should also be included, because of their effect on thedefendant’s driving record and ability to earn a livelihood, as well as the fact that this is the onlyplace most citizens interact with the court system. There were 72,844 contested traffic cases filed in1999. On the whole, expanding the statute is expected to double the number of cases covered, whichwill approximately double the costs.

' Expanding the statute to cover non-indigent parties is expected to have only an incremental effect. Ahigh percentage of recent immigrants are indigent and already qualify for court-appointedinterpreters. Especially in criminal cases, the increase should not be great, since most criminaldefendants are indigent or are sufficiently poor that the court already exercises its discretion toappoint an interpreter. For civil cases, many parties in family, paternity, small claims, and domesticabuse TROs are indigent, while the rate of indigence is much lower in civil, probate and adoptions.

' Achieving Americans with Disabilities Act compliance should not be a major additional expense,since most judges and clerks of court understand the federal requirements and are complying already,and the number of related interpreter requests is relatively small.

' Increased awareness will have a significant impact on the rate at which courts hire interpreters.Judicial education and a strong court rule should result in many more appointments of certified andqualified interpreters and decrease the reliance on family, friends, and untrained agency staff. Thecommittee estimates that better judicial awareness and strong court rules will approximately doublethe current use of paid interpreters.

Each of these effects will be felt over several years. Because of a delayed effective date for the statutechanges, the cost of the changes will be lowest for budget year 2001-02. Costs will increase during 2002-03, as judicial education takes effect and the first group of certified interpreters becomes available.Because practices vary from county to county, there are limitations on the committee’s ability to estimatehow many cases will be added by a change to the statutes. The committee’s estimates are consistent withinformation obtained from other states indicating that court interpreter costs can be expected to riserapidly when the need for well-qualified interpreters is finally recognized. Once the committee’srecommendations are fully implemented, it will take several years to measure the accuracy of these costprojections. After the first five years, projected costs can reasonably be estimated from projections ofpopulation growth among various ethnic groups.

Although overall costs of providing interpreter services will increase under the committee’s proposals,there will be some offsets: easier scheduling, less delay, more efficient proceedings in court, betterrecords, and fewer appeals. Clerks of court currently spend many hours scheduling interpreters; they willbe greatly aided by a statewide roster showing languages, qualifications, and contact information.

"""" Set county reimbursement rates at a reasonable level

The rate of reimbursement under §814.67, currently $35.00 per half-day for circuit courts, should beincreased to a rate closer to full reimbursement for the counties. The current statutory rate does not comeclose to the rate that the counties must pay to find well-qualified interpreters. The committee surveyedthe clerks of circuit court to determine the current market rate for court interpreters. It found that countiespaid an average of $40.00 per hour for court interpreters in the last half of 1999. This rate varied fromcounty to county but did not follow a pattern based on regions of the state or rural/urban courts. The


average rate was the same for foreign languages as it was for sign language. The committee also studiedthe rates paid in other states with similar interpreter certification programs, and found that $40.00 was inthe middle of the range paid for certified interpreters.

Based on this information, the committee recommends that the statute be revised to set an hourlyreimbursement rate of up to $40.00 per hour per certified interpreter and up to $30.00 per hour pernoncertified interpreter. The differential between certified and noncertified interpreters is designed torecognize the increased skills and professionalism of certified interpreters, and provide to an incentive fornoncertified interpreters to attend training and take the exam. By setting a cap on the amount ofreimbursement, the statute will continue to encourage negotiation of interpreter fees and cost control atthe county level. However, the hourly rate should be subject to an automatic cost of living increase tokeep the rate close to the actual market rate for well-qualified interpreters, so that the rate does notbecome as far out of date as it is now.

In addition, the statute should be rewritten to minimize the paperwork associated with three times asmany reimbursement requests. The statute should give the court Office of Management Services theauthority to require that reimbursement requests be submitted within certain time limits and to sendreimbursement checks on a quarterly basis.

# Develop a court interpreter project

The committee recommends that the Director’s office develop the interpreter training and certificationprogram and judicial education program through a two-year project position located in the Director’soffice, with funding sufficient to conduct statewide training programs. If the program is successful andthe workload continues as anticipated, a permanent position may be sought later.

Interpreter training. The committee recommends an extensive program of interpreter training andoversight, including orientation programs, ethics training, written comprehensive tests, certification tests,advanced language-specific training, background checks, and disciplinary powers. The details of thisprogram are discussed in chapter 5 of this report.

The cost for the first two years of the training and testing program is $89,000. This includes a one-timefaculty development program to train Wisconsin interpreters, judges, and court staff to act as interpretertrainers; a series of seven orientation workshops around the state, creating the base for a statewide rosterof interpreters; administration of the certification exam in Spanish and Hmong; advanced training inSpanish and Hmong to expand the pool of certified interpreters; and reprinting the interpreters handbook.

Interpreter coordinator. One project position is requested in the director of state court’s office todevelop the interpreter program. The first years of the program will be staff-intensive, writingcurriculum, establishing a testing process, identifying and coordinating faculty, compiling mailing listsand rosters, and other start-up tasks. The interpreter coordinator will administer the writtencomprehension and certification test, conduct background checks, work on interpreter recruitment,maintain interpreting information on the court’s Website, and provide related assistance to the circuitcourts. The interpreter coordinator will work with the Office of Judicial Education to design ongoing


What will effective interpreting cost?

Current reported annual cost paid by counties for freelance interpreters $488,646Milwaukee staff interpreters $ 80,000Total reported costs for interpreter services $568,646Current annual amount of state reimbursement $188,800

Estimated increased costs due to change in reimbursement rate2001-02 $195,0002002-03 $305,000

Estimated additional costs of covering all cases, nonindigent parties2001-02 $295,0002002-03 $610,000

Estimated effect of judicial education, increased interpreter availability2001-02 $100,0002002-03 $305,000

Total new funding needed under §20.625(1)(c)2001-02 $590,0002002-02 $1,220,000

New funding for interpreter services this biennium $1,810,000

Training and testing program $89,000Interpreter coordinator $109,600New program funding this biennium $198,600

education programs and materials for judges, court staff, and attorneys. The coordinator will alsoevaluate the program to measure its effect and recommend improvements.

At least eight states have a position in the director’s office dedicated primarily to court interpreter issues.At least three other states have “access” coordinators who work on interpreter programs along with raceand disability issues. In addition, many metropolitan courts have developed interpreter programs just foran individual city or county. In Wisconsin, Milwaukee County has received a one-year grant from thestate Office of Justice Assistance to begin working on interpreter issues on behalf of the circuit court.The Milwaukee position will develop procedures for providing interpreter services, work with judges andcourt commissioners on interpreter issues, perform research and analysis, and work closely with theDirector of State Courts office to coordinate efforts. The committee has requested a project position inorder to demonstrate the worth of the program, but expects to request a permanent position in two years ifthe program works out as expected. Other states have found that a well-run interpreter program requiresstaff, and that the need for training, testing, and maintaining an interpreter roster is an ongoing process.

The interpreter coordinator should be hired and begin work as soon as possible. The beginning salary forthe project position is estimated at $43,700 for a person with a strong background in languages, adulteducation, and program development.


Chapter 5. Interpreter certification & training

The first two years of the state interpreter project are designed to provide a basic level of training andcomprehension testing for interpreters across the state, and to offer the first round of certification tests inSpanish and Hmong. The project will develop a statewide roster with the names, phone numbers,languages, and qualifications of the interpreters who have passed the comprehension and certification tests.

!!!! Orientation workshops & comprehension tests

Orientation workshops. Before potential interpreters are placed on the court roster, they will berequired to attend a two-day orientation to court interpreting. The curriculum will focus on ethicalconduct, legal terminology and court procedure, and basic legal interpreting skills. The orientation willgive interpreters a good introduction to court work, allow some practice time, and help the trainees decideif they are ready to pursue the certification test. Class size will be limited to promote better interactionwith faculty and more experienced interpreters who attend.

The faculty for the orientation workshops will be developed using a “training the trainers” modelrecommended by other court interpreter programs. Nationally recognized interpreter trainers will be hiredfrom outside the state to train Wisconsin trainers. The Wisconsin faculty will include a limited number ofjudges, court administrators, and Wisconsin court interpreters, those with the best interpreting skills andthe best potential for becoming trainers themselves. The outside trainers will help develop the skills ofthe Wisconsin trainers, then guide the administration of the first orientation workshop and critique theperformance of the Wisconsin trainers. This will enable Wisconsin to give the workshops at much lowercost in the future and will create a core constituency of skilled interpreters and judges who understand andsupport the program. These trainers will also be helpful for judicial education programs and conferences.The committee recommends that the first workshop be offered in late 2001.

Written comprehension test. Immediately after the end of the orientation workshop, there will be athree-part written test covering ethics, legal terminology and procedure, and general English usage. Thistest is currently being developed by National Center for State Courts Consortium and tested by theOregon state courts. Interpreters will be required to pass this test in order to be placed on the roster and toadvance in the program. Examinees who fail will be offered feedback on each part of the test to helpthem develop their knowledge as needed. It is important to note that the written comprehension test is ascreening device for basic court knowledge and can be passed by any English-speaking person whostudies the materials. It should not be confused with the certification test, which tests for languageproficiency and the ability to translate legal concepts between English and another language.


Why do interpreters needtraining and monitoring?

A victim-witness coordinator observed the following:

“A juvenile defendant was tried for battery anddisorderly conduct. The juvenile and victim wereboth Hmong and both required interpreters. Theinterpreter for the juvenile had never been in acourtroom before, and you could tell she did not knowwhen to interpret and did not understand the courtproceedings. The juvenile defendant did not receivemuch interpretation, because the interpreter seldomspoke. The judge had to keep informing her that itwas OK to talk to the juvenile during the courtproceedings.”

During the first two years, the workshop andwritten comprehension test will be offered inseven cities on a regional basis. This willprovide a basic level of training and screeningfor most interpreters currently working in thecourts. In later years, orientation training willbe offered when and where needed.

Advanced language-specific courses.The two foreign languages most used inWisconsin courts are Spanish and Hmong.Other states have found that they can certify asizeable number of practicing Spanishinterpreters with the first test, while anothergroup can be certified with some additionaltraining. Asian languages often prove moredifficult for many reasons, resulting infrustration with the test and the courts. The

Wisconsin program will offer advanced training in Spanish and Hmong during the first two years to makesure there is a reasonable pass rate and a larger pool of certified interpreters available to the courts.Advanced training will also cover intercultural issues and interpreting for other legal settings such as jails,mental health hearings, and attorney conferences.

"""" Certification tests & reciprocity

Certification test. The certification exam tests knowledge of English and the target language, abilityto interpret accurately and completely between the two languages, and ability to convey legal concepts.In the consortium foreign language exams, interpreters are tested in three modes: consecutiveinterpretation (question and answer), simultaneous (continuous, while proceedings are ongoing), and sight(oral interpretation of a written document). Tests are graded using scoring units such as numbers andnames, idioms, legal terms, changes in tone and formality, and descriptions. The tests are administeredvia audiotape by in-state proctors, then sent to an experienced team of raters to be graded off-site. Thepassing grade in most states is set at 70%.

Certification will be noted on the state roster so that courts will know that these are the most highlyqualified interpreters available. Certified interpreters must be called first to see if they are available, andwill be paid more per hour when they work. Initially, Wisconsin will offer the certification test only inSpanish and Hmong, the two languages most in demand.

Reciprocity. Foreign language interpreters will be granted reciprocity by the Director’s office if theyare certified by another state court belonging to the National Center For State Courts Consortium or bythe federal courts, and if the interpreter has completed the other eligibility requirements. Sign languageinterpreters must have the legal certification offered by the National Registry of Interpreters for the Deaf.


Sign language certification. The committee recommends that the Directors office should notdevelop its own certification test for American Sign Language and other forms of communication withdeaf and hard of hearing individuals. Certification tests for sign language interpreters are already givenby a well-respected national organization, the Registry of Interpreters for the Deaf (RID), which offersseveral basic certificates and a specialized legal certificate. (The National Association of the Deaf alsooffers a basic test in some states, although it does not have a legal certification.) Basic and advanced legaltraining are offered locally by the Wisconsin RID chapter. There is no need to duplicate these functions.

Sign language interpreters will be eligible for the statewide roster if they have one of several basic RID orNAD certificates. They will be considered certified for purposes of the Wisconsin court program if theyhave received the RID legal certification (SC:L). To make sure that sign language interpreters havereceived the same information and screening as foreign language interpreters, they will still be required totake the Wisconsin court orientation workshop, pass the written comprehension test, submit to abackground check, and sign the ethics affidavit.

#### Other roster requirements

Ethics affidavit. In order to be included on the statewide roster, all candidates who have passed thewritten comprehension test will be asked to sign a statement indicating that they have read, understood,and will abide by the Wisconsin Interpreter Code of Ethics. Interpreters appearing on the roster agree tosubmit themselves to possible disciplinary action by the Director’s office, including suspension orexclusion from the roster and from future employment by the courts of Wisconsin.

Future program ideas. Once the interpreter training and testing program is established and it appearsthat there will be a core group of certified interpreters working on a regular basis, the director’s officeshould consider whether to offer continuing professional education courses, and whether to require acertain number of continuing credit requirements for courses offered by the court, professionalassociations, colleges and universities, etc. At a later point in the program’s development, the Director’soffice should also consider whether to develop a mentoring program that allows new interpreters to workclosely with experience interpreters using court observations, sharing of techniques, and advice. Thecommittee also plans to discuss whether a background check should be required before any interpreter isaccepted for inclusion on the roster.

Fees will be kept low for the first two years while the program establishes its credibility and demonstratesto interpreters why they should take the training and do the work necessary for certification. Low feeswill also make it possible for low-income bilingual people to attend the programs and be listed on theroster. Once the program is established, the committee will consider the optimum level for program fees.Other states have found that it is not possible to charge high enough fees to make the program self-supporting, and that forgoing fees for the first few years promotes the broadest pool of interpreters.

$$$$ Recruiting new interpreters

Interpreter recruitment. In the first two years of the program, the director’s office should keepcurrent interpreters informed about the new training and testing requirements. Working through the


interpreter’s committee and court staff, the Director’s office should publicize these recommendationsusing a mailing list of current court interpreters developed by the committee. The Director’s officeshould work closely with the Wisconsin Registry of Interpreters for the Deaf, the Bureau of Deaf andHard of Hearing, and other interested agencies. Further publicity should follow when the code of ethics ispassed, when court rules are put in place, and when training and testing programs become available. TheDirector’s office should use the court’s Web site or a newsletter for regular communication.

Even after the program is established, there will still be a need for ongoing interpreter recruitment efforts.The need for court interpreters should be publicized through the foreign language media, community andreligious organizations, job fairs and training programs and ethnic community events. The Director’soffice should publish a brochure on becoming a court interpreter, add information to the court Website,and develop a list of sources for further training outside the court system. The Director’s office shouldwork with organizations interested in providing basic and advanced interpreter training such asuniversities, technical colleges, nonprofits, and advocacy groups. These efforts should be coordinatedwith ongoing judicial, clerk, and attorney education programs.

%%%% Long-term effect of the training & certification program

By following these recommendations, the State of Wisconsin can expect to have a significant andrespectable court interpreter program within five years. Experience in other states suggests that the courtscan expect to have a small pool of certified Spanish interpreters in urban areas within the first two trainingand testing cycles. After five years, certified Spanish interpreters will be available for most proceedingsin the counties that use Spanish interpreters regularly. Certified interpreters should also be available totravel to other counties for the more serious and lengthy proceedings.

Achieving an adequate distribution of Hmong interpreters will be more difficult. Minnesota is the onlystate to have offered the Hmong test, and it has only two certified Hmong interpreters so far. Given thisexperience, Wisconsin can expect to have only a few certified Hmong interpreters for the near future,enough to cover one or two metro areas and perhaps travel for felonies or similarly serious cases. TheMinnesota court interpreter program has suggested collaboration with the Wisconsin program to increasethe number of training opportunities and the size of the Hmong interpreter pool. Most states find thatthey never have enough certified interpreters for all proceedings in all areas of the state. Areas of thestate that do not have a large Spanish-speaking or Hmong population will need to import certifiedinterpreters when the need arises.

Wisconsin already has a pool of legally certified sign language interpreters, and a number more can beexpected to take the Registry of Interpreters for the Deaf legal test once the courts require legal certificationand pay more for it. For other languages, there may be a few interpreters certified by other states who applyfor reciprocity in Wisconsin. For the most part, services in other languages will be provided by noncertifiedinterpreters. The qualification of noncertified interpreters will be improved as well, since all interpreters onthe roster will have received at least a minimum level of training and been tested on their understanding ofEnglish, court terminology and procedure, and the interpreter code of ethics.


Chapter 6. Training for judges & others

Training and certification of court interpreters will be of limited value unless accompanied by training forjudges, clerks of court, lawyers, social workers and other professionals. These professionals must betrained to recognize when an interpreter is needed, understand the qualifications required, work effectivelywith the interpreter in court, provide proper oversight of interpreter performance, and recognize Americanswith Disabilities Act issues. With the approval of the Supreme Court and the assistance of court staff, thecommittee will develop a well-integrated program of professional education and resource materials duringits second year. These recommendations will have the greatest effect if a staff person is added tocoordinate a professional education effort and if the rules of court are amended as suggested.

The interpreter handbook should be revised to be a handbook for judges and clerks as well as forinterpreters. Changes to the statutes and court rules should be added, the code of ethics should beincorporated, and the training and certification program should be described. The handbook shouldincorporate ideas from the Minnesota Best Practices Manual and the National Center for State CourtsCourt Interpreting Model Guides for preferred judicial practices and procedures.

The five circuit court benchbooks should be reviewed to identify where interpreter issues should benoted. The interpreter committee should work with the benchbook committees to add references to civilparties, victims, and witnesses, add Americans with Disabilities Act requirements on disabled jurors, andadd references to the revised interpreter handbook. The committee should also review the municipaljudge benchbook and include copies of the revised interpreter handbook for municipal judges andclerks. The committee will provide similar review for the reserve judge manual and the clerk ofcircuit court handbook.

The committee plans to develop curriculum, materials, and speakers for use in professional training. Thecommittee will incorporate training materials, videos, and demonstrations from other states. Trainingprograms will cover the new statutes and rules, how to assess a need for an interpreter, who pays for aninterpreter, how to judge the skills of an interpreter, the role of the interpreter in court, the code of ethics,how to preserve a record, jury instructions, and Americans with Disabilities Act requirements. Thecommittee plans to develop a group of trainers and speakers to work in coordination with the interpreterorientation training.

The audience for professional training should be identified broadly. The committee hopes to scheduletraining for circuit court judges, clerks of circuit court, court commissioners, and municipal judges andclerks. The committee will work with the Office of Judicial Education to incorporate interpreter issuesinto the judicial college, judicial conferences, topical programs, clerk institutes, and municipal judge andclerk conferences. The committee hopes to work with the chief judges and district court administrators to


present short training and discussion programs for district meetings throughout the state. The committeewill collaborate on professional training with the State Bar of Wisconsin, Wisconsin Clerks of CircuitCourt Association, the District Attorney’s Association, the State Public Defender, legal servicesorganizations, social service providers, universities, community colleges, and community agencies.

In its second year, the committee plans to review related forms, instructions and procedures forconsistency with the rest of the program. The committee will consider developing a pattern juryinstruction that inform the jury about the role of the interpreter in the courtroom and the jury room, and aninstruction that cautions bilingual jurors to rely only on the official English interpretation. The committeeplans to review court forms and brochures to see where interpreter information should be added, and torecommend that certain forms, brochures, and instructions be translated into other languages. Thecommittee will consider recommendations on using tapes or video to preserve interpreted testimony incase of a challenge on appeal.

What if the judge does not understand the interpreter�s role?

A criminal defendant appeared in a Wisconsin circuit court accompanied by an interpreter, who wasunknown to the court. The judge did not conduct any examination of the interpreter to determine hislinguistic qualifications or ask about conflicts of interest. The judge asked the defendant, “How do youplead, guilty or not guilty?” The interpreter and the defendant spoke back and forth for severalminutes. Finally the interpreter said, “He’d like to request an attorney.” The judge then set the matterfor trial and arranged to have the same interpreter available for the all of the defendant’s subsequentappearances.


Chapter 7. Other recommendations

!!!! Public education & support

The committee plans to publicize its findings and recommendations throughout the fall of 2000.Committee members will work to publicize the report through the Wisconsin Bar Journal, Third Branch,newsletters, English-language and foreign-language media, and will develop brochures for interpretersand for the general public.

From late 2000 to early 2001, with the approval and support of the Director of State Courts andWisconsin Supreme Court, the committee plans to work with the Department of Administration, theGovernor, and the Legislature to increase understanding of the statutory and budget proposals. Courtstaff plan to develop a ride-along program that allows legislators and staff to visit courtrooms and see forthemselves the impact that language differences have on court proceedings. Committee members will beavailable to attend and testify at legislative hearings and budget meetings.

The committee plans to seek support from interested groups including judges, court commissioners,clerks of court, attorneys, interpreters, social service providers, refugee services, community and religiousorganizations, victim assistance organizations, law enforcement, etc. The committee also plans to meetwith groups interested in the proposal, such as the Wisconsin Counties Association and the WisconsinClerk of Court Association. Legislative efforts may be coordinated with similar legislative proposals bythe Wisconsin Council on the Deaf and Hard of Hearing.

As these proposals move through the Legislature, committee members and staff will evaluate the need forpublic hearings. If it appears that hearings would help gather needed information or support, staff shouldschedule hearings at several locations around the state and invite the groups listed above to attend, thensummarize the testimony and findings for the Legislature.

"""" Telephone interpreting

Allowing well-qualified interpreters to serve by telephone is appropriate for many situations and shouldbe encouraged within certain limitations. As part of the program, the committee plans to recommendguidelines to help judges determine when telephone interpreting is appropriate, and when an interpretershould be present in person. Training for interpreters and court personnel will cover protocols fortelephone interpretation.


Current statutes permit interpreting via telephone and videoconference in civil and criminal proceduresother than trial. Wis. Stats. §§807.14, 967.09. The committee is aware of only a few Wisconsin judgeswho regularly use interpreters via telephone. Telephone interpreting has received generally favorableevaluations from the administrative office of the federal courts, New Jersey, Florida, and the NationalCenter for State Courts. These studies found that telephone interpreting is most suitable if it can providea certified interpreter where none is available locally. The studies have found that it is generally notappropriate for lengthy or complex proceedings, or where there are poor acoustics.

There can be several advantages of telephone interpreting:' using a more qualified interpreter than is available locally;' finding an interpreter for a rare language;' having someone available immediately when the hearing should not be postponed;' reducing travel costs and waiting time; and' minimizing conflicts of interest in a small community.

There can also be drawbacks to telephone interpreting:' inaudibility due to poor acoustics or equipment;' inaudibility due to poor practices, such as speaking too quickly or too softly, passages too long or

complex to interpret properly, two people speaking at once;' more difficult for interpreter to interrupt to ask for things repeated or clarified;' interpreter cannot see facial expressions, exhibits, or papers; and' speakerphones do not allow attorney-client consultation or simultaneous interpreting.

Some of these drawbacks can be overcome through better training of judges, lawyers, and interpreters,and some can be overcome through equipment purchases and technological advances. However, theNational Center for State Courts study stresses that telephone interpreting has one purpose only: to avoidusing unqualified interpreters. Using a telephone to reach an interpreter of unknown qualifications iscounterproductive; the court must continue to exercise its obligation to conduct voir dire into theinterpreter’s qualifications.

Finding qualified interpreters. In the studies conducted by the federal and New Jersey courts, thecourt system had its own certified interpreters available to handle the calls. Wisconsin at present hasneither certified interpreters nor staff interpreters available, so calls will need to be routed to acommercial service. At present there is one primary commercial service providing telephone interpretingservices, known as Language Line (formerly AT&T Language Line). Customers call the switchboard,request a language, and are routed to an interpreter, usually within a minute. In response to demand bycourts and lawyers, Language Line routes court calls first to a specialized subset of interpreters who arecertified by the federal courts, California courts, or any consortium state. However, there is no guaranteethat a court-certified interpreter will be available, and the customer is not told whether a certifiedinterpreter is on the line. Language Line fees (as of May 2000) are $3.00 per minute for court-certifiedinterpreters. Courts must also establish an account at an initial cost of $75.00 to $200.00 and pay for amonthly minimum usage of $25.00 to $50.00.


Purchasing specialized equipment. Teleconferencing equipment provides much better soundquality than ordinary speakerphones and should be used where it is available. Some speakerphones orteleconference phones can be outfitted with two handsets on the same telephone line to allow for easierinterviews and private conversations. There is also specialized telephone interpreting equipment insuccessful use by the federal courts and state courts in Idaho and Florida. The Rauch VoxOlom systemhas improved sound quality and is designed to allow for simultaneous translation, attorney-clientconsultations, and interpreter requests for clarification. It requires a special console for the interpreter (atthe interpreter’s office or a nearby courthouse), two phone lines in the courtroom, and a headset for thelimited English proficiency person. The cost for this system as of August 2000 is $1800-$2100 for theinterpreter’s equipment and $1000-$3000 for the court’s equipment, depending on whether compatibleconference equipment is already available.

Evaluations. The National Center for State Courts study tested Language Line interpreters and avariety of equipment. NCSC found that Language Line could usually have an interpreter available withina minute, that the average telephone hearing lasted 11 minutes, and that the service was adequate andcost-effective in most cases. Most of the problems encountered were due to poor equipment or poorjudicial practices. The federal court study used specialized interpreting equipment and certified staffinterpreters, and found that to be a good combination. The administrative office of the courtssubsequently purchased a number of interpreter consoles for their staff interpreters. Most federal courtproceedings were under one hour in duration. The New Jersey court used certified staff interpreters andordinary speakerphones. It found that using staff interpreters was cost-effective and provided a goodlevel of service, but that speakerphones were of limited utility and that judges needed more training. NewJersey recommended against using a telephone interpreter for proceedings longer than 15 minutes.

Training judges and interpreters. Apart from equipment, most of the problems that arose in thesestudies were due to poor judicial practices. These problems can be overcome by training of judges,lawyers, and interpreters, and through clear written guidelines for when and how telephone interpretersshould be used. The federal courts have trained both judges and interpreters to use the equipment and tounderstand the necessary protocols for effective telephone communication; Washington and New Jerseyhave provided similar training for interpreters. The committee recommends that guidelines for the use oftelephone interpreters and related training be developed, and will address this issue during its second year.

#### Auxiliary aids

The Americans with Disabilities Act is implemented through regulations written by the U.S. Departmentof Justice. The regulations require courts to furnish appropriate “auxiliary aids and services” wherenecessary to afford an individual with a disability an equal opportunity to participate in a service,program, or activity. 28 CFR 25.160(b)(1). The regulations define “auxiliary aids and services” toinclude qualified interpreters, transcription services, written materials, assistive listening devices, openand closed captioning, videotext displays, and other effective methods of making aurally deliveredinformation available to individuals with hearing impairments. 28 CFR 35.104. Americans withDisabilities Act requirements will be reviewed in the training programs for judges and court staff.


People with disabilities use a wide range of languages and communication modes. Many people who aredeaf from birth use American Sign Language and will only have effective communication if a qualifiedAmerican Sign Language interpreter is provided. Some deaf people use signs that follow the Englishword order, and some use foreign sign languages. On the other hand, many people who lose their hearingas adults use little or no sign language. Late-deafened adults most commonly communicate in Englishusing amplification devices, oral interpreters, or writing. The court needs to provide the assistance bestcalculated to achieve a free flow of communication, with deference to the preference of the individual.

There is a wide and growing range of technologies available to assist disabled court users who havedifficulty in communicating. For those hard of hearing and deaf court users who are proficient Englishreaders, real-time court reporting can provide an effective form of communication access. This computertechnology, when used by specially trained court reporters, produces a verbatim transcript of everythingsaid in the courtroom. Similar to closed captioning on a television or movie screen, it allows a personwith hearing loss to read words on the monitor as the court reporter types the testimony. As real-timecourt reporting becomes more generally available in Wisconsin courts, this technology may be asignificant source of assistance to hard of hearing and deaf court users who are proficient readers.

For a complete set of recommendations on communications access for court users with disabilities, seeAccess, Report of the Wisconsin Supreme Court Committee on the Court Related Needs of the Elderlyand People with Disabilities, Chapter 8 (1994).

$$$$ Future projects

In its second year, the committee will work with the Governor and the Legislature to expand the coverageof the interpreter statute and to dedicate the resources needed for court access. It will propose changes tothe rules of court governing training and certification of interpreters and a code of ethics for interpreters.It will work with the Office of Judicial Education to develop education programs and written materials forjudges, clerks of court, and others.

It will consider the need for translation of court forms, instructions, and brochures. Translation requiresspecific skills just as interpreting does; it also benefits from review by several native speakers to makesure that the terms used are understandable by people from all regions and groups, and that Wisconsin-specific terms like “extended supervision” and “challenge incarceration” are accurately defined. Thecommittee will consider whether to establish guidelines for translation of court documents, and willidentify which languages and which forms should be available.

The committee was unable to address municipal court needs during its first year due to lack of time. Thisis an important area, since half a million municipal citations are issued every year, and many of thosepeople go to court to resolve them. The committee plans to seek input from municipal courts during itssecond year about ways to address the procedural and budgetary needs there. The committee will alsodiscuss the issue of interpreters for law-related proceedings in executive branch agencies. Committeework on these issues will continue through the 2001-2003 biennium, until the training and certificationprogram is fully established.


Chapter 8. Alternatives considered

The committee considered and rejected a number of alternatives during its deliberations. Some wereconsidered incompatible with the goals of the program, while others were not suitable for implementationat this time. This chapter outlines the reasoning behind the rejection of these alternatives.

!!!! Implement parts of the program

The committee’s proposal follows a well-integrated, well-tested approach recommended by the NationalCenter for State Courts and successfully implemented in a number of similar states. While it might betempting from a budgetary point of view to implement only part of the proposal, the committee in itsdiscussions has found that the various pieces of the proposal are deeply intertwined with each other.

' If the training and testing program is adopted without expanding the coverage of the statute andincreasing the funding, there is little incentive for interpreters to participate. There will beinsufficient demand for services and no assurance that interpreters who pass the certification examwill be paid more or hired more often.

' If the coverage of the statute is expanded without training and testing, or if judicial education alone isincreased, the demand for more interpreters will far exceed the supply. Courts will be unable tocomply with the statutes and will still have no way to assess the quality of the interpreters that theyuse.

' If the coverage of the statute is expanded without added funding, the committee anticipates thatcounties will be strongly opposed to the change. Judges and clerks of court will find themselvescaught between the need for fiscal responsibility at the county level and the need to comply with whatthe state law requires.

' If the project staff position is not funded, there will be inadequate resources to develop the trainingand testing program, to maintain the roster of certified interpreters, and to offer training for judges,clerks, and attorneys. Either the program will fail, or it will go forward only by siphoning resourcesaway from existing programs.

' If only parts of the training program are funded, the pass rate of the test will be lower, stirringcriticism of the test, decreasing the supply of certified interpreters, and provoking frustration on thepart of judges, clerks, and interpreters. There is no assurance that private sector and universitytraining programs would be developed to meet this need.


"""" Hire staff interpreters

Milwaukee County currently employs a full-time staff Spanish interpreter who handles criminal cases, aswell as some paternity and civil pro se cases. Milwaukee County contracts with two other Spanishinterpreters on a regular basis. There is also documented need for Spanish interpreters in much ofsouthcentral and southeast Wisconsin, including Dane, Rock, Walworth, Racine, Kenosha, and Waukeshacounties. Under a statewide system of hiring interpreters, it might be cost-effective to create several full-time court interpreter positions to serve Milwaukee and southeast Wisconsin. Without a centralizedsystem, the scheduling and payment problems would be very difficult. For other languages and otherparts of the state, the volume of work does not appear to be sufficient to make staff interpreters cost-effective. It is possible that staff interpreters in southeast Wisconsin could serve as telephone interpretersfor short hearings in the rest of the state. The committee will continue to examine this issue in futureyears.

#### Include interpreters in the circuit court sum sufficient budget

The committee has recommended that the structure be retained for the way counties are reimbursed forinterpreter services, with a higher hourly amount and larger overall appropriation. However, a number ofcommittee members felt that interpreter costs should be included in the court’s sum sufficient budget, inkeeping with the proper role of the court interpreter. Interpreters are an integral part of the court team,necessary to assure the fairness, accuracy, and efficiency of the proceedings. Accordingly, the statutescould properly be revised to include interpreter costs in the circuit court sum sufficient budget as anecessary cost of providing basic court services and access. If interpreter costs were paid entirely by thestate, interpreter rates could be negotiated through the state district court administrators, as is done withfreelance court reporters, giving the state greater control over the allowable rate to be billed. A move tostate funding could also provide the necessary economy of scale to make state staff interpreters cost-effective within a region or judicial district.

The most significant impediment to state payment is the shift in workload. The responsibility ofnegotiating with individual interpreters would be shifted from the counties to the state district courtadministrators, who would need to enter into state contracts with all of the interpreters in the judicialdistrict. The time spent verifying the billings and paying the interpreters would move from the countyclerks of court to the court Office of Management Services. This would be a significant shift in workloadand would require at least one additional accounting position in the Director’s office. For that reason, theDirector recommended and the committee agreed that the scheduling, negotiating and accountingfunctions should remain in the counties with the clerks of court. Since it is contemplated that eventuallycourts will appoint three times as many interpreters as they do today, the committee will request anadditional statutory requirement that counties submit their interpreter billings quarter by quarter, toeliminate duplicate bills and improve auditing capability.


$$$$ Interpreter training provided by other groups

The court could rely on universities, community colleges, nonprofits, or professional interpreter groups toprovide basic and advanced interpreter training. However, the committee has concluded that thisapproach would limit the influence the court would have over the content, standards, frequency, andcontinuity of training opportunities. The committee has also concluded that the private and universitysectors are not likely to provide this training on a consistent, timely basis.

There are significant differences in the programs currently available for sign languages interpreters andforeign language interpreters. The Wisconsin chapter of Registry of Interpreters for the Deaf runs a legalinstitute to help sign language interpreters prepare for the legal certification exam. The introductorycourse runs four days, followed by sixteen additional days on specific topics. The sign language legalcertification exam is administered by the National Registry of Interpreters for the Deaf. For that reason,the state need not offer advanced court training for sign language interpreters.

For foreign language interpreters, legal training is more embryonic. The International Institute ofWisconsin (located in Milwaukee) is beginning a training program for interpreters in legal, medical, andmental health settings. The University of Wisconsin Milwaukee is developing a training program forHmong interpreters in domestic violence cases, and there is some interest among other groups around thestate. The committee will monitor the programs available and will encourage their development, but willput its efforts toward the orientation program developed by and for the courts.

%%%% Local programs and standards

In some states, individual counties or districts set their own standards for court interpreters. In Illinois,for instance, Cook County has developed its own certification program based on the consortium model.In Florida, the judicial districts set their own standards, while the Director’s office provides technicalassistance and advisory testing. In Wisconsin, Milwaukee County has convened a local committee to talkabout many of these same issues and has obtained one-year funding from the Office of Justice Assistanceto work on interpreter issues. However, this approach creates a patchwork of rules and policies,inequitable funding, loss of the economies of scale, and decreased cooperation among counties. Adulteducation and test development are complex fields and require a professional approach. The validity andauthority of the programs will be greatly enhanced if adopted by the Supreme Court and implementedstatewide.


Chapter 9. Conclusion

Language is the most basic tool of the courts. Many cases depend on a precise use of language and anunderstanding of what the parties intended by it. The ability to assert a position or defend one’s interestsis tied to the ability to communicate with one’s attorney, the judge, and the jury. For someone whospeaks or hears no English, the language barrier can be as significant as a lock on the courthouse door.

For immigrants to be incorporated into the rights and responsibilities of community life, they must haveaccess to the community’s way of handling business, resolving disputes, responding to crime, andattending to family matters. The same is true for persons with disabilities, as Congress has alreadyconcluded. Access to the courts enhances the integration of people into civic life and strengthens thefabric of the community as a whole. Denying access to government leads to a Balkanized society, onewhere many language groups lead separate lives and see no reason to respond to a centralizedgovernment. The state should take advantage of the momentum being generated by this committee toaddress court interpreter problems in a systematic and positive way.

The committee has attempted to present a clear plan of action that will produce visible results within ashort period of time. Achieving these results will require a serious and realistic commitment of resourcesfrom the Legislature, as well as a major change in the way courts view interpreters. The committee’srecommendations need to be implemented as a package in order to achieve the results desired.

By following these recommendations, the State of Wisconsin can expect to have a significant andrespectable court interpreter program within five years. Certified Spanish interpreters can be available formost proceedings in those counties that need interpreters regularly, several certified Hmong interpreterswill be available, and the existing pool of legally certified sign language interpreters will grow. Thequalifications of noncertified interpreters will be improved as well, since all interpreters on the roster willhave received at least a minimum level of training and will have been tested on their understanding ofEnglish, court terminology and procedure, and the interpreter code of ethics.

By the end of five years, all circuit court judges and clerks of court will have been offered training incontracting and working with interpreters. Similar training will have been provided for municipal judgesand clerks, district attorneys, public defenders, and other attorneys interested in the topic. The state willhave a strong and coherent set of statutes and court rules, and a budgetary appropriation that recognizesthe importance of qualified interpreters. By following the model used in other states, Wisconsin courtscan expect to eliminate many of the current misunderstandings and injustices caused by languagedifferences, and to improve fairness and accountability on behalf of all residents.


Appendix

!!!! Findings on court interpreter use

"""" Language & cost maps

#### Current statutes & case law

$$$$ Proposed code of ethics

%%%% Definitions

& Bibliography


Appendix 1. Findings on court interpreter use

The committee undertook a data collection effort during its first year to get some basic information oncurrent interpreter use. The committee sought information on what languages were needed, in whichcounties, for what types of proceedings, whether interpreter services were provided by paid interpreters orfamily and friends, what the services cost, and how much interpreters were paid per hour.

The committee conducted three surveys: (1) a 72-county survey of the clerks of circuit court, asking abouteach county’s use of court interpreters from July to December 1999; (2) a 7-county intensive survey ofcircuit court interpreter use from March to May 2000; (3) a municipal court survey based on telephoneinterviews with municipal judges and clerks from 11 cities and towns from across the state. Thecommittee had a high rate of return on its surveys and was able to establish a useful baseline for currentcourt practices.

!!!! 72-county survey of clerks of circuit court

The committee sent a written survey to the 72 clerks of circuit court, asking about each county’s use ofcourt interpreters from July to December 1999. Sixty-six counties reported back, and the remainingcounties most likely did not use interpreters during that period. Many of the costs estimates for thecommittee’s budget proposal are based on these reported interpreter costs.

Costs. During this period, the counties reported that they paid $242,264 for freelance interpreters. Inaddition, Milwaukee County spent $24,000 for a full-time Spanish staff interpreter assigned to thecriminal division of the circuit court and $16,000 for sign language services provided by a county agency.This suggests that counties currently spend at least $565,528 each year for court interpreters, of whichonly $188,800 is reimbursed by the state. Most said this was a typical time period for costs. This figurereflects billings for paid interpreters only; it does not reflect the very common use of family members,friends, or bilingual agency staff.

Languages. The clerks of court were asked how often they used interpreters for particular languagesduring this period. Most clerks reported the number of billings paid, so again the numbers do not reflectfamily and agency staff, nor the times that the need for an interpreter was unrecognized. Spanish was themost common language for which interpreters are needed. Milwaukee, Dane, Racine, Waukesha,Kenosha, Brown, Walworth, and Rock counties are all heavy users of Spanish interpreters. Walworthreported that Spanish was needed daily, and Waukesha estimated that Spanish was 60% of the need.

Hmong interpreters were needed in 15 counties, and most of these counties relied on them heavily.Hmong was the language most used in Dunn, LaCrosse, Marathon, and Portage counties. Milwaukee,


Sheboygan, Brown, Outagamie, Eau Claire, and Winnebago also used Hmong interpreters frequently.The heaviest use of sign language interpreters was in the southeast corner of the state, in Kenosha,Racine, and Walworth counties. Milwaukee County usage provided by a county agency and thereforeunrecorded. Only one use of a real-time reporter was recorded, but other uses may have gone unrecordedif no funding was required. Other languages needed during this time were Polish, Russian, Somali,Laotian, Slavic, Arabic, Vietnamese, and Urdu. Clerks mentioned that at other times they have alsoneeded Korean, Tagalog, German, Turkish, Cantonese, Cambodian, Serbian, and Punjabi.

No interpreters were hired in at least 18 counties, and possibly not in the six counties that failed torespond. A number of counties noted that they hadn’t hired an interpreter in all the years the clerk hadbeen there. One clerk noted that an interpreter had never been hired because parties always brought afriend or relative.

Hourly rate. From information provided by the clerks of court, the committee calculated that thestatewide average hourly rate for foreign language interpreters was $39.70 per hour. When paid by thehalf-day, the statewide average for foreign language was $46.00 per half-day, $77.00 per whole day. Thehighest recorded hourly rate for foreign language was $150.00 per hour; the low was $10.00 per hour.

The statewide average hourly rate for sign language interpreters was calculated to be $39.80 per hour.When paid by the half-day, the statewide average for sign language interpreters was $35.00 per half-day,$70.00 per whole day. The highest recorded hourly rate for sign language was $70.00 per hour; the lowwas $25.00 per hour. There was not a great deal of regional variability to the rates paid. Rates did notvary significantly by region of the state or urban/rural location. Occasional counties were high or low,but overall the rates were close to the average.

Guaranteed minimums. Thirty counties reported that they had no policy providing a guaranteedminimum number of hours. Thirteen counties guaranteed a minimum of one to four hours, and six said itwas negotiable with the freelance interpreter or agency.

Travel costs. Most counties did not provide a separate figure for travel costs. For those that did, travelwas no more than 20% of the overall cost and usually less than 10%. Travel costs were higher inWashington County, which needed a Mandarin interpreter from Milwaukee, and Barron County, whichneeded a Somali interpreter from Minneapolis. Telephone interpreting was mentioned by one county.

Comments. Most clerks offered additional comments:' It is a constant struggle to schedule interpreters, especially at the last minute. There is a general

increase in the need for all interpreters.' It is difficult to find sign language interpreters.' It isn’t hard to find Hmong interpreters because the parties always bring their own.' The use of telephone interpreters should not be curtailed.' In some counties, there is an increased need in the summer months for tourists and farm laborers.' The statute should require standardized rate of pay to eliminate fee bargaining. One clerk said, “Our

hands are tied, and we have to pay what they ask.” One noted that nonprofessional interpreters aremuch cheaper than professional ones.


The survey asked clerks to send a list of interpreters and their addresses so the committee could sendtraining announcements. Most clerks included their lists, and the committee now has a large mailing listfor this purpose. A few clerks did not send their lists, expressing the fear that they would be forbidden touse their current interpreters under the committee’s proposal.

Appendix 2 contains a map showing interpreter costs by county and judicial district as derived from thissurvey. These reported costs form much of the basis for the committee’s budget recommendations.

"""" Seven-county intensive survey

In an effort to gather more specific data, seven counties agreed to track the use of interpreters in everyproceeding from March to May 2000. The participating counties were chosen for their size, geographicdistribution, and the fact that they had previously used interpreters on a regular basis. The participatingcounties were Dunn, Kenosha, Marathon, Milwaukee, Outagamie, Racine and Waushara. These countieswere asked to complete a form for each hearing that came before the circuit court where an interpreterwas used; they were also asked to report if interpreters were used for client contact with the clerk of court,register in probate, or a judicial assistant.

During the three months studied, the seven counties had contacts with 1,124 people who required the useof an interpreter. If an individual returned for three separate hearings during the period, the surveycounted that as three separate contacts. The contacts per county were Dunn 13, Kenosha 174, Marathon105, Milwaukee 706, Outagamie 93, Racine 117, and Waushara 16.

86% of the interpreters were used for Spanish, 9% for Hmong, 1% for sign language, and the remaining4% for a variety of languages, including Polish, Laotian, Serbian, Mandarin, Korean, Arabic, andPortuguese. Hmong was the predominant language in Dunn and Marathon Counties; Spanish waspredominant in the others.

Three-quarters of the cases were criminal cases. The case types in which an interpreter was required werefelony 17%, misdemeanor 22%, criminal traffic (including drunk driving) 33%, traffic 9%, juvenile 7%,family and paternity 11%, mental commitments 1%, and other 1%. Only one civil case received aninterpreter during the survey. Interpreters were used mostly at early proceedings such as criminal initialappearances and preliminary hearings (44%), and various pretrial, scheduling, and status conferences(32%). Plea hearings and sentencings constituted 18% of the hearings, jury trials were 1%, and othertypes of hearings were 5%.

Of the interpreters provided, 90% were provided for the litigants. Parents of juvenile defendants orminors involved in paternity matters were provided with interpreters in 8% of the cases. 9% of interpreteruse occurred out of court, often at the front counter in the clerk of court’s office.

For cases in which an interpreter was required, the survey asked if an interpreter was actually used and, ifso, who provided the interpreting services. There were 912 responses to this question. The responsesindicated that 94% of the interpreters were paid interpreters. Many of the interpretations were provided


by the Spanish staff interpreter in Milwaukee. Other paid interpreters were freelance contract interpreters,interpreter agency interpreters, or employees of social service agencies and mutual assistanceorganizations. Family or friends were identified as interpreters in 4% of the cases. Only 2% of thehearings were either delayed or rescheduled because an interpreter could not be found. No telephonicinterpreting was reporting during the 3-month survey.

#### Municipal court survey

Many Wisconsin residents come into contact with the court system through the municipal courts, usuallyin response to traffic citations. Over one-half million municipal citations (enough for 10% of thepopulation) were issued during calendar year 1999. Approximately 90, 000 of those defendants (16%)made a personal appearance in court. Those people needing interpreters found barriers to access similarto those at the circuit court level.

Based on the 72-county survey, the committee surveyed cities and townships within the geographicregions showing the highest interpreter use. The committee surveyed eleven municipal courts inAshwaubenon, Delavan, DePere, Green Bay, La Crosse, Lake Geneva, City of Madison, Town ofMadison, Middleton, Milwaukee, and Wausau. Committee members conducted telephone interviewswith municipal judges and clerks to collect information on the use of court interpreters.

The municipal courts surveyed reported a range of interpreter usage, needing interpreters for ½% to 5% ofthe caseload. Spanish and Hmong were the most languages often needed in court. The strongest need forSpanish interpreters was in the southeast portion of the state and Green Bay. Large populations ofsoutheast Asians were found in La Crosse, Wausau, and Green Bay. Other languages needed includedLaotian, Vietnamese, Thai, Chinese, Russian, Polish, and American Sign Language.

Paid interpreters in municipal courts come from a variety of resources. Milwaukee Municipal Court hasin-house Spanish interpreter and the City of Green Bay has a Spanish interpreter on retainer. Cities withhigh Hmong populations make frequent use of the local Hmong Mutual Association. Milwaukee usesLanguage Line telephone interpreting services for non-Spanish languages, for proceedings other thantrials. Sometimes the interpreters used are dictated by city purchase agreements with agencies orindividual interpreters. No court indicated that it secured interpreters from the same lists maintained bythe state district court administrators.

Friends or relatives appeared as interpreters at least 50% of the time in most municipal courts. One courtused family members and friends for 98% of its interpreting needs. Several courts, including the City ofMilwaukee, allowed friends or relatives for interpreters for the first appearance, but used court appointedinterpreters for subsequent hearings. One court applauded the use of friends or family as a cost saving tothe court. Several made comments suggesting that the cost of interpreters overshadowed considerationsof quality and professionalism. Three of the courts indicated that law enforcement officers were used asinterpreters, but mainly at the initial appearance stage.


Appendix 2. Language & cost maps

How much do Wisconsin counties spend on court interpreting?

1999 interpreter costs reported by clerks of circuit courtJuly to December 1999: $284,323 for six months,$568,646 annualized cost

66 counties reportingsee Appendix 1 for survey description

By judicial district:

1. $94,2212. 53,2733. 31,5284. 8,9515. 38,2206. 8,7927. 5,0068. 26,2809. 9,493

10. 8,559$284,323

for six months


Which counties have thegreatest need for

Spanish interpreters?

Which counties have thegreatest need forHmong interpreters?

Spanish spoken at homeUS Census data 1990

Statewide total 75,931 in 1990*

Top counties:

Milwaukee 31,866Dane 5,510Racine 5,055Waukesha 4,325Kenosha 3,966Brown 1,745Walworth 1,757Rock 1,723Outagamie 1,246Sheboygan 1,158Winnebago 1,150Jefferson 1,064La Crosse 1,022

*US Census Bureau, Population Estimates Program,estimates that the Hispanic population of Wisconsin

increased 50.5% from the 1990 census until 7/1/99.

DWD Office of Refugee Services,May 2000 Statewide total 43,418

Top counties:

Milwaukee 9,835Marathon 4,699Sheboygan 4,228Brown 3,893Outagamie 3,537La Crosse 3,419Eau Claire 2,959Winnebago 2,072Manitowoc 1,889Dane 1,868Portage 1,401Dunn 1,287


REFUGEE POPULATION OF WISCONSIN, MAY 2000DWD/DES Office of Refugee Services

Ethnicity/Language Hmong Lao Vietnam Cambodian

FormerSoviet Union

FormerYugo-Slavia

OtherEurope Africa

Other/Cuba Total

COUNTIESAshland 1 1Barron 2 44 46Brown 3,893 850 73 20 145 59 64 16 27 5,147Buffalo 1 1Burnet 3 3Calumet 63 23 86Chippewa 356 20 376Clark 32 32Columbia 1 1Crawford 2 4 6Dane 1,868 458 676 400 132 178 20 129 227 4,088Dodge 31 2 3 36Douglas 145 145Dunn 1,287 1,287Eau Claire 2,959 1 70 5 3 31 3,069Fond du Lac 406 20 7 21 12 466Grant 36 8 2 12 58Green 30 4 34Green Lake 99 3 102Iowa 4 4Jackson 1 5 6Jefferson 89 7 30 26 21 2 175Juneau 7 13 20Kenosha 25 11 76 19 4 135Kewaunee 5 3 8LaCrosse 3,491 47 55 25 3 32 45 3,698Lafayette 1 1Manitowoc 1,889 95 25 58 4 5 2,076Marathon 4,699 513 26 35 24 8 4 3 5,312Marinette 1 1Marquette 30 3 4 37Milwaukee 9,835 2,755 1,779 70 2,202 760 120 1,368 18,889Monroe 7 7Outagamie 3,537 4 58 30 6 8 6 3,649Ozaukee 15 15 14 4 48Pierce 8 1 4 13Polk 35 35Portage 1,401 10 4 3 1 2 3 1,424Racine 9 103 148 5 7 16 288Rock 153 265 222 5 8 653Rusk 45 9 1 55Sauk 2 2Shawano 4 4Sheboygan 4,228 100 20 15 195 1 1 1 4,561St. Croix 7 7Trempealeau 6 6Vernon 3 3Walworth 1 32 6 39Washburn 6 6Washington 100 16 30 20 1 167Waukesha 3 302 81 25 72 3 20 506Waupaca 37 37Waushara 2 4 6Winnebago 2,072 30 55 82 45 2,284Wood 787 10 797TOTAL 43,418 5,490 3,565 842 2,529 1,667 272 356 1,804 59,943


Appendix 3. Current statutes & case law

!!!! Federal statutes & regulations

Americans with Disabilities Act. The Americans with Disabilities Act (ADA), 42 USC §§12101-12213, requires that state and local government facilities, including courts, be accessible to individualswith disabilities and provide reasonable accommodations to qualified persons. The U.S. Department ofJustice has published regulations implementing the ADA, found in 28 CFR Part 35. The regulationsunder ADA Title II require that courts and other public entities take “appropriate steps to ensure thecommunications with applicants, participants, and members of the public with disabilities are as effectiveas communications with others.” (28 CFR 35.160(a)). State and local governments are required to“furnish appropriate auxiliary aids and services where necessary to afford an individual with a disabilityan opportunity to participate in, and enjoy the benefits of, the service, program, or activity.” 28 CFR35.160(b)&(1). “Auxiliary aids and services” are defined in 28 CFR 35.104 as:

qualified interpreters, note takers, transcription services, written materials, telephone handsetamplifiers, assistive listening devices, assistive listening systems, written materials, telephonescompatible with hearing aids, closed captioned decoders, open and closed captioning,telecommunication devices for deaf persons (TTD/TTYs), video text displays, and other effectivemethods of making aurally delivered information available to individuals with hearingimpairments.

The ADA specifically calls for the use of “qualified” sign language interpreters. 42 USC §12102(1)(a).The regulations define “qualified” to mean “an interpreter who is able to interpret effectively, accuratelyand impartially, both receptively and expressively, using any necessary specialized vocabulary.” 28 CFR36.303. The ADA focuses on the interpreter’s actual ability to make communication effective in aparticular circumstance. The ADA requires that auxiliary aids and services be provided at public expenseregardless of the disabled person’s ability to pay. 28 CFR 35.130(f). The court may not charge any partywith the cost of the interpreter.

"""" Federal case law

The right to an interpreter is not explicit in the United States Constitution. However, the constitutionalright to an interpreter may arise under the Sixth Amendment as part of the right to counsel (effectivecommunication between attorney and client), or as part of the right to confront witnesses. United Statesex rel Negron, 434 F. 2d 386, 389 (2d Cir. 1970). The right may also arise under the due process clauseof the Fifth and Fourteenth Amendments requiring that a defendant be able to participate in his own


defense. When a trial court has notice of a defendant’s language deficiency, it is required to communicateclearly to the defendant the right to a competent interpreter, at government expense if the defendant isunable to afford one. The right to an interpreter may be waived only through intentional relinquishmentor abandonment of a known right. Id.

#### Wisconsin statutes & regulations

20.625 Circuit courts.There is appropriated to the director of state courts for the following programs:(1) COURT OPERATIONS….(c) Court interpreter fees. The amounts in the schedule to pay interpreter fees under §885.37 (4) (a) 2.

46.295 Interpreters for the hearing-impaired.(1) The department may, on the request of any hearing-impaired person, city, village, town or county orprivate agency, provide funds from the appropriation under §20.435 (6) (a) and (hs) to reimburseinterpreters for hearing-impaired persons for the provision of interpreter services.(2) The department shall grant priority to requests to pay fees charged by interpreters for the following,in the following order:(a) Emergencies.(b) Medical, mental health, alcohol and drug abuse, psychiatric and psychological services.(c) Legal services and civil court proceedings.(d) Matters concerning law enforcement personnel.(e) Matters concerning any federal, state, county or municipal agency.(3) The department shall maintain lists of qualified interpreters under §885.37 (5) (b).(4) The department may use as an interpreter for hearing-impaired persons only the following:(a) An interpreter for hearing-impaired persons who is certified by the national registry of interpreters forthe deaf.(b) If an interpreter under par. (a) is unavailable, an interpreter for hearing-impaired persons whosequalifications have been determined appropriate by the department.(5) The department may bill any public or private agency at the rates established by the department forinterpreter services for hearing-impaired persons commensurate with the certification or qualificationlevel of the interpreter providing services if the department determines that the agency is required understate or federal law to provide interpreter services to a hearing-impaired person or if the agency agrees topay for the services.(6) The department shall promulgate rules to implement this section.History: 1995 a. 27 ss. 2271, 2417; Stats. 1995 s. 46.295.

The Department of Health and Family Services has written regulations to implement §46.295. ChapterHFS 77 establishes criteria and procedures for providing reimbursement and payment for interpretationservices rendered to a hearing-impaired person in cases not covered by section 885.37. HFS 77.03(1)recognizes the various types of certificates issued by the National Registry of Interpreters for the Deaf(RID). DHFS also has its own program to determine and verify the level of competence of interpreterswho are not RID-certified. HSF 77.03(10). DHFS maintains a registry of certified and verified


interpreters, and establishes a rate of payment for non-court interpreters on the basis of certification andverification levels.

756.001 State policy on jury service; opportunity and obligation to serve as juror.(1) Trial by jury is a cherished constitutional right.(2) Jury service is a civic duty.(3) No person who is qualified and able to serve as a juror may be excluded from that service in any courtof this state on the basis of sex, race, color, sexual orientation as defined in s. 111.32 (13m), disability,religion, national origin, marital status, family status, lawful source of income, age or ancestry or becauseof a physical condition….History: 1991 a. 271; Sup. Ct. Order No. 96-08, 207 Wis.2d xv (1997).

Judicial Council Note, 1996: …. Subsection (3) implements ABA Standard 4 by expanding thenondiscrimination clause of prior s. 756.01 (3) to all classes protected under the state equal rights statute,s. 101.22.

756.02 Juror qualifications.Every resident of the area served by a circuit court who is at least 18 years of age, a U.S. citizen and ableto understand the English language is qualified to serve as a juror in that circuit unless that resident hasbeen convicted of a felony and has not had his or her civil rights restored.History: Sup. Ct. Order No. 96-08, 207 Wis.2d xv (1997).

807.14 Interpreters.On request of any party, the court may permit an interpreter to act in any civil proceeding other than trialby telephone or live audiovisual means.History: Sup. Ct. Order, 141 Wis.2d xiii (1987); 1997 a. 252.

814.67 Fees of witnesses and interpreters.(1) The fees of witnesses and interpreters shall be as follows:(a) For attending before a municipal judge, an arbitrator, or any officer, board or committee:1. For witnesses, $5 per day.2. For interpreters, $10 per one-half day or such higher fees as the municipality or county board mayestablish.(b) For attending before any other court:1. For witnesses, $16 per day.2. For interpreters, $35 per one-half day.(bg) For interpreters assisting the state public defender in representing an indigent in preparing for courtproceedings, $35 per one-half day.(c) For traveling, at the rate of 20 cents per mile going and returning from his or her residence if withinthe state; or, if without the state, from the point where he or she crosses the state boundary to the place ofattendance, and returning by the usually traveled route between such points.(2) A witness or interpreter is entitled to fees only for the time he or she is in actual and necessaryattendance as such; and is not entitled to receive pay in more than one action or proceeding for the same


attendance or travel on behalf of the same party. A person is not entitled to fees as a witness or interpreterwhile attending court as an officer or juror. An attorney or counsel in any cause may not be allowed anyfee as a witness or interpreter therein.History: 1981 c. 317; 1987 a. 27; 1995 a. 27.

885.37 Interpreters for persons with language difficulties or hearing or speakingimpairments.(1) (a) If a court has notice that a person fits any of the following criteria, the court shall make thedeterminations specified under par. (b):1. The person is charged with a crime.2. The person is a child or parent subject to ch. 48 or 938.3. The person is subject to ch. 51 or 55.4. The person is a witness in an action or proceeding under subd. 1., 2. or 3.(b) If a court has notice that a person who fits any of the criteria under par. (a) has a language difficultybecause of the inability to speak or understand English, has a hearing impairment, is unable to speak orhas a speech defect, the court shall make a factual determination of whether the language difficulty or thehearing or speaking impairment is sufficient to prevent the individual from communicating with his or herattorney, reasonably understanding the English testimony or reasonably being understood in English. Ifthe court determines that an interpreter is necessary, the court shall advise the person that he or she has aright to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided forhim or her at the public's expense. Any waiver of the right to an interpreter is effective only if madevoluntarily in person, in open court and on the record.(2) A court may authorize the use of an interpreter in actions or proceedings in addition to those specifiedin sub. (1).(3) (a) In this subsection:1. "Agency" includes any official, employe or person acting on behalf of an agency.2. "Contested case" means a proceeding before an agency in which, after a hearing required by law,substantial interests of any party to the proceeding are determined or adversely affected by a decision ororder in the proceeding and in which the assertion by one party of any such substantial interest is deniedor controverted by another party to the proceeding.(b) In any administrative contested case proceeding before a state, county or municipal agency, if theagency conducting the proceeding has notice that a party to the proceeding has a language difficultybecause of the inability to speak or understand English, has a hearing impairment, is unable to speak orhas a speech defect, the agency shall make a factual determination of whether the language difficulty orhearing or speaking impairment is sufficient to prevent the party from communicating with others,reasonably understanding the English testimony or reasonably being understood in English. If the agencydetermines that an interpreter is necessary, the agency shall advise the party that he or she has a right to aqualified interpreter. After considering the party's ability to pay and the other needs of the party, theagency may provide for an interpreter for the party at the public's expense. Any waiver of the right to aninterpreter is effective only if made at the administrative contested case proceeding.(3m) Any agency may authorize the use of an interpreter in a contested case proceeding for a person whois not a party but who has a substantial interest in the proceeding.(4) (a) The necessary expense of furnishing an interpreter for an indigent person under sub. (1) or (2)shall be paid as follows:


1. In the supreme court or the court of appeals, the director of state courts shall pay the expense.2. In circuit court, the director of state courts shall pay the expense.2m. To assist the state public defender in representing an indigent in preparing for court proceedings, thestate public defender shall pay the expense.3. In municipal court, the municipality shall pay the expense.(b) The necessary expense of furnishing an interpreter for an indigent party under sub. (3) shall be paidby the unit of government for which the proceeding is held.(c) The court or agency shall determine indigency under this section.(5) (a) If a court under sub. (1) or (2) or an agency under sub. (3) decides to appoint an interpreter, thecourt or agency shall follow the applicable procedure under par. (b) or (c).(b) The department of health and family services shall maintain a list of qualified interpreters for use withpersons who have hearing impairments. The department shall distribute the list, upon request and withoutcost, to courts and agencies who must appoint interpreters. If an interpreter needs to be appointed for aperson who has a hearing impairment, the court or agency shall appoint a qualified interpreter from thelist. If no listed interpreter is available or able to interpret, the court or agency shall appoint as interpreteranother person who is able to accurately communicate with and convey information to and receiveinformation from the hearing-impaired person.(c) If an interpreter needs to be appointed for a person with an impairment or difficulty not covered underpar. (b), the court or agency may appoint any person the court or agency decides is qualified.History: Sup. Ct. Order, 67 Wis.2d 585, 760 (1975); 1975 c. 106, 199; Stats. 1975 s. 885.37; 1985 a. 266;1987 a. 27; 1995 a. 27 ss. 7207 to 7209, 9126 (19); 1995 a. 77.

905.015 Interpreters for persons with language difficulties or hearing or speakingimpairments.If an interpreter for a person with a language difficulty or a hearing or speaking impairment interprets asan aid to a communication which is privileged by statute, rules adopted by the supreme court or the U.S.or state constitution, the interpreter may be prevented from disclosing the communication by any personwho has a right to claim the privilege. The interpreter may claim the privilege but only on behalf of theperson who has the right. The authority of the interpreter to do so is presumed in the absence of evidenceto the contrary.History: 1979 c. 137; 1985 a. 266.

906.04 Interpreters.An interpreter is subject to the provisions of chs. 901 to 911 relating to qualification as an expert and theadministration of an oath or affirmation that the interpreter will make a true translation.History: Sup. Ct. Order, 59 Wis.2d R1, R162 (1973); 1981 c. 390; 1991 a. 32.

967.09 Interpreters may serve by telephone or video.On request of any party, the court may permit an interpreter to act in any criminal proceeding, other thantrial, by telephone or live audiovisual means.History: Sup. Ct. Order, 141 Wis.2d xiii (1987); 1987 a. 403.


$$$$ Wisconsin case law

State v. Neave, 117 Wis. 2d 359, 344 N.W. 2d 181 (1984). The Wisconsin Supreme Court has heldthat the right to an interpreter exists “as a matter of judicial administration”, concluding that in the interestof fairness and justice, interpreters should assist defendants where necessary. The assistance of aninterpreter promotes judicial economy by reducing the risk of appeal on grounds on inaccurateinterpretation or failure to appoint an interpreter. The right to an interpreter can only be waived by thedefendant personally, in open court and on the record. If the court determines that an interpreter isnecessary, the court must inform the defendant of the right to an interpreter and that one will be providedat public expense if the defendant is unable to afford one. See also State v. Besso, 72 Wis. 2d 335, 240N.W. 2d 895 (1976).

State v. Yang, 201 Wis. 2d 721, 549 N.W. 2d 769 (Ct. App. 1996). When a trial court is put onnotice that a defendant has a “language difficulty,” the court must a factual determination whether thedefendant needs an interpreter because such difficulty prevents the defendant from communicating withcounsel, reasonably understanding English testimony, or reasonably being understood in English. Thetrial court’s factual determination does not require an elaborate hearing.

State v. Tai V. Le, 184 Wis. 2d 860, 517 N.W. 2d 144 (1994). The selection of a qualified interpreteris within the discretion of the trial court. If the defendant is indigent, the expense for an interpreter isallocated to the Director of State Courts for in-court proceedings, and to the State Public Defender forout-of-court proceedings.

State v. Santiago, 206 Wis.2d 3, 556 N.W.2d 687 (1996). A defendant is deprived of the ability topresent his case to the circuit court and preserve it for appeal when testimony given in Spanish is nottranslated into English for the record. Without an English translation, the court cannot evaluate whetherthe substance of a Miranda warning in Spanish was sufficient that the defendant could knowingly andintelligently waive his right to an attorney. When both the accused and the witnesses require aninterpreter, the better practice may be to have two interpreters, one for the accused and one for the court.

State v. Patino, 177 Wis.2d 348, 502 N.W.2d 601 (Ct. App. 1993). When a person relies on atranslator, the statements of the translator are regarded as the speaker's for hearsay purposes.

State v. Hindsley, 2000 Wi.App. 130, ¶14-15, 614 N.W. 2d 48 (2000). Expert witnesses testified thatfor the concept “rights,” the interpreter used the sign for “all right” or “okay,” and the defendant’sresponses showed he understood the sign as “all right” or “okay.” The interpreter interpreted thedefendant’s nodding of his head to mean "yes," but in American Sign Language a head nod, by itself, maymean "I understand," "I'm waiting for clarification" or "go ahead," and does not necessarily mean "yes."At no time, one expert testified, did the defendant express that he understood his rights. Another expertcharacterized the communication between defendant and interpreter as "disconnected." Under thesecircumstances, the trial court properly concluded that the defendant’s waiver of the right to counsel wasnot knowing and intelligent.


Appendix 4. Proposed code of ethics

The committee will submit to the court this code of ethics for court interpreters. Interpreters, judges, andattorneys are often unaware of the proper role of the court interpreter and the professional responsibilitiesit demands. The purpose of the code of ethics is to articulate a core set of principles to guide the conductof a court interpreter and to educate judges in the level of conduct expected. The code addresses accuracyand completeness, representation of interpreter qualifications, impartiality and conflict of interest,professional demeanor, confidentiality and restriction of public comment, limitations on giving legal andother advice, communicating interpreter limitations to the judge, reporting ethical violations, andprofessional skills development.

The code of ethics will serve as a basis for education and training and may also serve as the basis fordisciplinary actions. Interpreters who appear on the state roster will be required to attend training andpass an examination on the principles of the code, and will agree to submit to discipline for any violation.Disciplinary action may include a period of suspension from service to the court or decertification andremoval from the roster.

PREAMBLE. Many persons are partially or completely excluded from participation in courtproceedings due to limited proficiency in the English language, being deaf, deaf/blind, hard of hearing, orhaving a speech disability. These communication barriers must be removed as much as is reasonablypossible so that all persons may enjoy equal access to justice. Qualified interpreters are highly skilledprofessionals who help judges conduct hearings justly and efficiently when communication barriers exist.

APPLICABILITY. The Code of Professional Responsibility for Interpreters in the State of WisconsinCourts (hereafter the “Code”) governs the delivery of services by foreign language and sign languageinterpreters working in the courts of the State of Wisconsin. Its purpose is to define the duties ofinterpreters and thereby enhance the administration of justice and promote public confidence in thecourts. This Code also applies to real time reporters when functioning in the capacity of providing accessto court users.

COMMENTARY. The word “shall” is used to define principles to which adherence is required. TheCommentary expands and describes basic principles of the Code. If a court policy or routine practiceappears to conflict with any provision of the Code, including the Commentary, the policy or practiceshould be reviewed for modification.


CANON 1: ACCURACY AND COMPLETENESS

Interpreters shall render a complete and accurate interpretation or sight translation, byreproducing in the target language the closest natural equivalent of the source language message,without altering, omitting, or adding anything to the meaning of what is stated or written, andwithout explanation.

Commentary

Interpreters have a twofold role:

1) to ensure that court proceedings reflect, in English, precisely what was said by persons whoare deaf, deaf/blind, hard of hearing, or who have a speech disability, or who have no orlimited proficiency in the English language.

2) to place persons who are deaf, deaf/blind, hard of hearing, or who have a speech disability, orwho have no or limited proficiency in the English language on an equal footing with personswho understand English.

This creates an obligation to conserve every element of information contained in a sourcelanguage communication when it is rendered in the target language.

Therefore, interpreters are required to apply their best skills and judgment to preserve, asfaithfully as is reasonably possible and without editing, the meaning of what is said, including the style orregister of speech, the ambiguities and nuances of the speaker, and the level of language that best conveysthe original meaning of the source language. Verbatim, “word for word”, or literal oral interpretations areinappropriate when they distort the meaning of what was said in the source language. However, everyspoken statement, even if it appears non-responsive, obscene, rambling, or incoherent should beinterpreted. This includes apparent misstatements.

Interpreters must never interject any statement or elaboration of their own. If the need arises toexplain an interpreting problem (e.g. a term or phrase with no direct equivalent in the target language or amisunderstanding that only the interpreter can clarify), the interpreter should ask the court’s permission toprovide an explanation.

Spoken language interpreters should convey the emotional emphasis of the speaker withoutreenacting or mimicking the speaker’s emotions, or dramatic gestures. Sign language interpreters,however, must employ all of the visual cues that the language they are interpreting for requires—including facial expressions, body language, and hand gestures. Judges should ensure that courtparticipants do not confuse these essential elements of the interpreted language with inappropriateinterpreter conduct. Any challenge to the interpreter’s conduct should be directed to the judge.


The obligation to preserve accuracy includes the interpreter’s duty to correct any errors ofinterpretation discovered during the proceeding. Interpreters should demonstrate their professionalism byobjectively analyzing any challenge to their performance.

The ethical responsibility to interpret accurately and completely includes the responsibility ofbeing properly prepared for interpreting assignments. Interpreters are encouraged to obtaindocuments and other information necessary to familiarize themselves with the nature andpurpose of a proceeding. Prior preparation is generally described below, and is especiallyimportant when testimony or documents include highly specialized terminology and subjectmatter.

In order to avoid any impropriety or even the appearance of impropriety, interpreters shouldseek leave of the court before conducting any preparation other than the review of publicdocuments in the court file. Courts should freely grant such leave in order to assist interpretersto discharge their professional responsibilities.

Preparation might include but is not limited to:

1) review of public documents in the court file, such as motions and supporting affidavits,witness lists and jury instructions; the criminal complaint, information, and preliminaryhearing transcript in a criminal case; and the summons, complaint and answer in a civil case.

2) review of documents in the possession of counsel, such as police reports, witness summaries,deposition transcripts and pre-sentence investigation reports, obtaining a written copy ofwitness lists from the court;

3) contacting previous interpreters involved in the case for information on language use/style;

4) contacting attorneys involved in the case for additional information on anticipated testimonyor exhibits;

5) anticipating and discussing interpreting issues related to the case with the judge, but only inthe presence of counsel unless the court directs otherwise.

CANON 2: REPRESENTATION OF QUALIFICATIONS

Interpreters shall accurately and completely represent their certifications, training, andexperience.

Commentary

Acceptance of a case by an interpreter conveys linguistic competency in legal settings. Withdrawing, orbeing asked to withdraw, after a court proceeding has begun is disruptive and wasteful of scarce publicresources. It is therefore essential that interpreters present a complete and truthful account of their


training, certification and experience prior to appointment so the court can fairly evaluate theirqualifications for delivering interpreting services.

CANON 3: IMPARTIALITY AND AVOIDANCE OF CONFLICT OF INTEREST

Interpreters shall be impartial and unbiased, and shall refrain from conduct that may givean appearance of bias. Interpreters shall disclose any real or perceived conflict of interest.

Commentary

Interpreters serve as officers of the court. Their duties in a court proceeding are to serve the courtand the public regardless of whether publicly or privately retained.

Interpreters of record should avoid any conduct or behavior that presents the appearance offavoritism toward anyone. Interpreters should maintain professional relationships with their clients,discourage personal dependence on the interpreter, and avoid participation in the proceedings other thanas an interpreter.

During the course of the proceedings, interpreters of record should not converse with parties,witnesses, jurors, attorneys, or with friends or relatives of any party, except in the discharge of theirofficial functions. Official functions may include an informal pre-appearance assessment to include thefollowing:

1) culturally appropriate introductions;2) a determination of variety, mode, or level of communication3) a determination of potential conflicts of interest; and4) a description of the interpreter’s role and function.

Interpreters should strive for professional detachment. Verbal and non-verbal displays ofpersonal attitudes, prejudices, emotions, or opinions must be avoided at all times.

Interpreters shall not solicit or accept any payment, gift or gratuities in addition to compensationfrom the court.

Any condition that interferes with the objectivity of an interpreter constitutes a conflict of interestand must be disclosed to the judge. Interpreters should only divulge necessary information whendisclosing the conflict of interest. The disclosure shall not include privileged or confidential information.The following circumstances create potential conflicts of interest that must be disclosed:

1) the interpreter is a friend, associate, or relative of a party, counsel for a party, a witness, or avictim (in a criminal case) involved in the proceedings;


2) the interpreter or the interpreter’s friend, associate, or relative has a financial interest in thesubject matter in controversy, a shared financial interest with a party to the proceeding, or anyother interest that might be affected by the outcome of the case;

3) the interpreter has served in an investigative capacity for any party involved in the case;

4) the interpreter has previously been retained by a law enforcement agency to assist in thepreparation of the criminal case at issue;

5) the interpreter is an attorney in the case at issue;

6) the interpreter has previously been retained for employment by one of the parties; or

7) for any other reason, the interpreter’s independence of judgment would be compromised inthe course of providing services.

The existence of any one of the above-mentioned circumstances must be carefully evaluated bythe court, but does not alone disqualify an interpreter from providing services if the interpreteris able to render services objectively. The interpreter should disclose to the court any indicationthat the recipient of interpreting services views the interpreter as being biased. If an actual orapparent conflict of interest exists, the court must decide whether removal is appropriate basedupon the totality of the circumstances.

CANON 4: PROFESSIONAL DEMEANOR

Interpreters shall conduct themselves in a manner consistent with the dignity of the court.

Commentary

Interpreters should know and observe the established protocol, rules, and procedures fordelivering interpreting services. When speaking in English, interpreters should speak at a rate andvolume that enables them to be heard and understood throughout the courtroom. Interpreters should be asunobtrusive as possible and should not seek to draw inappropriate attention to themselves whileperforming their professional duties. This includes any time the interpreter is present, even though notactively interpreting.

Interpreters should avoid obstructing the view of anyone involved in the proceedings, but shouldbe appropriately positioned to facilitate communication. Interpreters who use sign language or othervisual modes of communication must be positioned so that signs, facial expressions, and whole bodymovements are visible to the person for whom they are interpreting and be repositioned to accommodatevisual access to exhibits as necessary.

Interpreters are encouraged to avoid personal or professional conduct that could discredit thecourt.


Interpreters should support other interpreters by sharing knowledge and expertise with them tothe extent practicable in the interests of the court.

CANON 5: CONFIDENTIALITY

Interpreters shall protect the confidentiality of all privileged and other confidentialinformation.

Commentary

Interpreters must protect and uphold the confidentiality of all privileged information obtainedduring the course of their duties. It is especially important that interpreters understand and uphold theattorney-client privilege that requires confidentiality with respect to any communications betweenattorney and client. This rule also applies to other types of privileged communications. Interpreters mustalso refrain from repeating or disclosing information obtained by them in the course of their employmentthat may be relevant to the legal proceeding.

The interpreter shall accompany a juror into the jury room and interpret for jury deliberations.The role of the interpreter in jury deliberations is neutral and nonparticipatory. The interpreter shall notdisclose or comment upon jury deliberations.

In the event that an interpreter becomes aware of information that indicates probable imminentharm to someone or relates to a crime being committed during the course of the proceedings, theinterpreter should immediately disclose the information to the presiding judge. In an emergency, theinterpreter should disclose the information to an appropriate authority.

Interpreters shall never take advantage of knowledge obtained in the performance of duties, or bytheir access to court records, facilities, or privileges, for their own or another’s personal gain.

CANON 6: RESTRICTION OF PUBLIC COMMENT

Interpreters shall not publicly discuss, report or offer an opinion concerning a matter inwhich they are or have been engaged, even when that information is not privileged or required bylaw to be confidential, except to facilitate training and education.

Commentary

Generally, interpreters should not discuss interpreter assignments with anyone other than personswho have a formal duty associated with the case. However, interpreters may share information fortraining and education purposes, divulging only so much information as is required to accomplish thispurpose. Unless so ordered by a court, interpreters must never reveal privileged or confidentialinformation for any purpose, including training and education.


CANON 7: SCOPE OF PRACTICE

Interpreters shall limit themselves to interpreting or translating and shall not give legaladvice, express personal opinions to individuals for whom they are interpreting, or engage in anyother activities which may be construed to constitute a service other than interpreting ortranslating while serving as an interpreter.

Commentary

Since interpreters are responsible only for enabling others to communicate, they should limitthemselves to the activity of interpreting or translating only, including official functions as described inthe commentary to Canon 3. Interpreters, however, may be required to initiate communications during aproceeding when they find it necessary to seek direction from the court in performing their duties.Examples of such circumstances include seeking direction for the court when unable to understand orexpress a word or thought, requesting speakers to adjust their rate of speech, repeat or rephrasesomething, correcting their own interpreting errors, or notifying the court of reservations about theirability to satisfy an assignment competently. In such instances, they should make it clear that they arespeaking for themselves.

Interpreters may convey legal advice from an attorney to a person only while that attorney isgiving it. Interpreters should not explain the purpose or contents of forms, services, or otherwise act ascounselors or advisors unless they are interpreting for someone who is acting in that official capacity.Interpreters may translate language on a form for a person who is filling out the form, but should notexplain the form or its purpose for such a person.

While engaged in the function of interpreting, interpreters should not personally perform officialacts that are the official responsibility of other court officials.

CANON 8: ASSESSING AND REPORTING IMPEDIMENTS TO PERFORMANCE

Interpreters shall assess at all times their ability to deliver their services. When interpretershave any reservation about their ability to satisfy an assignment competently, they shallimmediately convey that reservation to the appropriate judicial authority.

Commentary

If the communication mode or language variety of the deaf, deaf/blind, hard of hearing, or non-English speaking person cannot be readily interpreted, the interpreter should notify the appropriatejudicial authority, such as a supervisory interpreter, a judge, or another official with jurisdiction overinterpreter matters.

Interpreters should notify the appropriate judicial authority of any circumstances (environmentalor physical limitation) that impede the ability to deliver interpreting services adequately. Thesecircumstances may include that the courtroom is not quiet enough for the interpreter to hear or be heard


by the non-English speaker, more than one person is speaking at the same time or too quickly for theinterpreter to adequately interpret. Sign language interpreters must make sure that they can both see andconvey the full range of visual language elements that are necessary for communication, including facialexpressions and body movements, as well as hand gestures.

Interpreters should notify the judge of the need to take periodic breaks in order to maintain mentaland physical alertness and prevent interpreter fatigue. Interpreters should inform the court when the useof team interpreting is necessary.

Even competent and experienced interpreters may encounter situations where routine proceedingssuddenly involve slang, idiomatic expressions or regional dialect, technical or specialized terminologyunfamiliar to the interpreter, e.g., the unscheduled testimony of an expert witness. When such situationsoccur, interpreters should request a brief recess in order to familiarize themselves with the subject matter.If familiarity with the terminology requires extensive time or more intensive research, interpreters shouldinform the judge.

Interpreters should refrain from accepting a case if they believe its language and subject matter islikely to exceed their capacities. Interpreters should also notify the judge if, during the course of aproceeding they conclude that they are unable to perform adequately for any reason.

CANON 9: DUTY TO REPORT ETHICAL VIOLATIONS

Interpreters shall report to the proper judicial authority any effort to impede theircompliance with any law, any provision of this code, or any other official policy governing courtinterpreting and translating.

Commentary

Because the users of interpreting services frequently misunderstand the proper role of interpretersthey may ask or expect the interpreters to perform duties or engage in activities that run counter to theprovisions of the code or other law, rules, regulations, or policies governing court interpreters. It isincumbent upon the interpreters to explain their professional obligations to the user. If, having beenapprised of these obligations, the person persists in demanding that the interpreters violate them, theinterpreters should turn to a supervisory interpreter, a judge, or another official with jurisdiction overinterpreter matters to resolve the situation.

CANON 10: PROFESSIONAL DEVELOPMENT

Interpreters shall improve their skills and knowledge and advance the profession throughactivities such as professional training and education, and interaction with colleagues, andspecialists in related fields.


Commentary

Interpreters must improve their interpreting skills and increase their knowledge of the languagesthey work in professionally, including past and current trends in slang, idiomatic expression, changes indialect, technical terminology and social and regional dialects as well as their applicability within courtproceedings.

Interpreters should keep informed of all statutes, rules of court and policies of the judiciary thatgovern the performance of their professional duties.

Interpreters should seek to elevate the standards of the profession through participation inworkshops, professional meetings, interaction with colleagues, and reading current literature in the field.

SOURCES CONSULTED:

National Center for State Courts Model Code of Professional Responsibility for Interpreters in theJudiciary; Best Practices Manual on Interpreters In the Minnesota State Court System, Code OfProfessional Responsibility For Interpreters In The Minnesota State Court System; Equal Access To TheCourts For Linguistic Minorities, Final Report of the New Jersey Supreme Court Task Force onInterpreter and Translation Services; Code of Professional Responsibility of the Official Interpreters ofthe United States Courts; Fundamentals of Court Interpretation Theory, Policy, and Practice, (Gonzalez,Vasquez, Mikkelson); Registry of Interpreters for the Deaf, Code Of Ethics; Code of Ethics, CaliforniaState Courts; Code Of Professional Responsibility For Interpreters In The Oregon Courts.


Appendix 5. Definitions

Some of the technical terms used throughout this report are defined and explained below. The terms arearranged conceptually rather than alphabetically.

Limited English proficiency: the inability to adequately understand or communicate effectively inEnglish in a court proceeding. This term applies to foreign language speakers whose primary language isa language other than English and whose ability to speak English is inadequate for participating in a courtproceeding. This term also applies to persons who are unable to hear or speak English because of hearingloss, deafness, speech impairment, or other disability. This includes those deaf persons whose primarylanguage is American Sign Language, as well as those hard of hearing persons whose native language isEnglish but who are unable to hear adequately for court purposes. Sometimes referred to as “non-Englishspeaking.”

Interpretation: Interpretation means the unrehearsed transmitting of a spoken or signed message fromone language to another. Interpretation is distinguished from “translation,” which relates to writtenlanguage. Live testimony is interpreted.

Translation: Translation is converting a written text from one language into written text in anotherlanguage. The source of the message being converted is a written language. Translation requiresdifferent skills than those used by an interpreter. Forms and documents are translated.

Sight interpretation: Sight interpretation (also called sight translation) is a hybrid of interpreting andtranslating, where the interpreter reads a document written in one language, converting it orally intoanother language. A written plea agreement might be sight interpreted.

Consecutive interpreting: Consecutive interpreting is rendering statements made in one intostatements in another language after the speaker has stopped speaking. When using this mode ofinterpreting, it may be necessary for the interpreter to signal a speaker to pause to permit a consecutiveinterpretation when the length of the utterance approaches the outer limits of the interpreter’s capacity forrecall. Witness questions and answers are usually interpreted consecutively.

Simultaneous interpreting: Simultaneous interpreting is rendering an interpretation continuously atthe same time someone is speaking. Simultaneous interpreting is intended to be heard only by the personreceiving the interpretation and is usually accomplished by speaking in whispered tones or usingequipment specially designed for the purpose in order to be as unobtrusive as possible. A limited Englishproficiency party will usually listen to most of a trial through simultaneous interpreting.


Summary interpreting: Summary interpreting is paraphrasing and condensing the speaker’sstatement. Unlike simultaneous and consecutive interpreting, this method does not provide a preciserendering of everything that is said into another language. This mode of interpreting is common amonguntrained interpreters, but should not be used in court settings.

American Sign Language (ASL): American Sign Language is a visual-gestural language created bydeaf people and used by approximately one-half million deaf Americans and Canadians of all ages. It hasits own syntax and grammatical structure. Interpretation in this context refers to conveying the realmeaning communicated between American Sign Language and spoken English.

Transliteration: This term refers to the act of representing the English language in a visuallyaccessible form of communication. This method closely follows the grammar and structure of spokenEnglish through the use of manual coding. Manually coded English (also known as “signed English”) isnot a true language. Use of this system necessitates having a viewer who knows English well.

Registry of Interpreters for the Deaf (RID): The National Registry of Interpreters for the Deafis a professional organization of American Sign Language/English interpreters and transliterators. Theorganization is dedicated to the professional development, training and certification of its members.There is also a Wisconsin chapter of this organization.


Appendix 6. Bibliography

Publications

Access, Report of the Wisconsin Supreme Court Interdisciplinary Committee on the Court-Related Needsof the Elderly and People with Disabilities (1994).

Araiza, Francisco, “Se Habla Everything: The Right to an Impartial, Qualified Interpreter,” Wis. Lawyer15 (September 1997).

Gonzalez, Vasquez and Mikkelson, Fundamentals of Court Interpretation, Carolina Academic Press(1991).

Hewitt, William E., Court Interpretation: Model Guides for Policy and Practice in the State Courts,National Center for State Courts (1995).

Minnesota Supreme Court Interpreter Advisory Committee, Best Practices Manual on Interpreters in theMinnesota State Court System (May 1999).

National Center for State Courts, Overcoming the Language Barrier: Achieving Professionalism in CourtInterpreting, State Court Journal, vol. 20, no.1 (1996).

Pantoga, Heather, “Injustice in Any Language: The Need for Improved Standards Governing CourtroomInterpretation in Wisconsin,” 82 Marquette L. Rev. 601 (1999).

Wisconsin Director of State Courts, The Wisconsin Interpreters Handbook: A Guide for Judges, CourtCommissioners, Attorneys, Interpreters and Citizens (rev. ed. 1998).

Websites

National Association of Judiciary Interpreters and Translators: http://www.najit.org

National Center for State Courts: http://www.ncsc.dni.us/RESEARCH/INTERP/index.html(includes links to state and federal court interpreter programs)

Registry of Interpreters for the Deaf: http://www.rid.org

United States Census Bureau: http://www.census.gov

Wisconsin Court System: http://www.courts.state.wi.us

Documents

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